Itron, Inc.
ITRON INC /WA/ (Form: 8-K, Received: 01/12/2018 06:02:18)



UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________________________
FORM 8-K

CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

 
January 5, 2018
 
Date of Report (Date of Earliest Event Reported)
ITRON, INC.
(Exact Name of Registrant as Specified in its Charter)
Washington
 
000-22418
 
91-1011792
(State or Other Jurisdiction
of Incorporation)
 
(Commission File No.)
 
(IRS Employer
Identification No.)
2111 N. Molter Road, Liberty Lake, WA 99019
(Address of Principal Executive Offices, Zip Code)
(509) 924-9900
(Registrant's Telephone Number, Including Area Code)
 
(Former Name or Former Address, if Changed Since Last Report)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

c Written communications pursuant to Rule 425 under Securities Act (17 CFR 230.425)
c Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
c Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
c Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR §240.12b-2).
Emerging growth company c
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. c


 



Item 2.03
Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.

On January 5, 2018 (the “Acquisition Closing Date”), Itron, Inc. (“Itron”) entered into a second amended and restated credit agreement (the “Credit Agreement”) providing for committed credit facilities (the “Credit Facilities”) in the amount of $1.150 billion. The Credit Agreement consists of a U.S. dollar term loan facility (the “Term Loan”) in the amount of $650 million and a multicurrency revolving credit facility (the “Revolver”) in the committed amount of $500 million. The Credit Agreement amended and restated in its entirety Itron’s amended and restated credit agreement dated June 23, 2015 (the “Prior Credit Agreement”).

The initial funding under the Credit Agreement occurred on January 5, 2018, at which time $650 million of the Term Loan was funded, and US $170 million and €55 million (borrowed by a Luxembourg subsidiary of Itron) was advanced under the Revolver. The proceeds of the Credit Facilities were used as part of the financing of the merger consideration for the previously announced acquisition of Silver Spring Networks, Inc. by Itron and to refinance the outstanding indebtedness under the Prior Credit Agreement. In accordance with the provisions of the Credit Agreement, $110 million of the advances under the Revolver was repaid on January 8, 2018. The Revolver will be used for working capital and general corporate purposes, as well as a facility for the issuance of letters of credit.

Itron is required to make quarterly principal payments on the Term Loan in the amount of $4.0625 million from June 2018 through March 2019, $8.1250 million from June 2019 through March 2020, $12.1875 million from June 2020 through March 2021, $16.2500 million from June 2021 through December 2022, and the remainder due at maturity on January 5, 2023. All outstanding principal under the Revolver is due at maturity on January 5, 2023. Principal amounts paid prior to the maturity date may be reborrowed prior to such date.

Interest on the Credit Facilities is based on, at the election of Itron, an index related to LIBOR, EURIBOR (for certain advances on the Revolver in foreign currencies) or the alternate base rate, in each case, plus the applicable margin. The applicable margin is determined by Itron’s total leverage ratio, as are described in Credit Agreement. As of the Acquisition Closing Date, the applicable margin was 2.00% for LIBOR and EURIBOR advances and 1.00% for alternate base rate advances.

The Credit Agreement requires certain of Itron’s domestic subsidiaries to guarantee the obligations of Itron under the Credit Facilities. As of the Acquisition Closing Date, the only Itron subsidiary that guaranteed the Credit Facilities was Itron Networked Solutions, Inc. (formerly Silver Spring Networks, Inc.), which is the entity acquired by Itron on the Acquisition Closing Date. Also on the Acquisition Closing Date, Itron Networked Solutions, Inc. guaranteed Itron’s obligations under Itron’s $300 million 5.00% senior notes due in 2026.

The above description of the Credit Facilities does not purport to be a complete statement of the rights and obligations under the Credit Agreement and is qualified in its entirety by reference to the terms of the Credit Agreement, a copy of which is attached hereto as Exhibit 4.1 and incorporated herein by reference.





-2-




Item 9.01    Financial Statements and Exhibits.

(d)    Exhibits.


-3-




SIGNATURE

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, hereunto duly authorized.

 
 
ITRON, INC.
 
 
 
 
 
 
By:
/s/ Shannon M. Votava
Dated: January 11, 2018
 
 
Shannon M. Votava
 
 
 
Senior Vice President, General Counsel and Corporate Secretary


-4-

Exhibit 4.1
EXECUTION VERSION





$1,150,000,000

SECOND AMENDED AND RESTATED CREDIT AGREEMENT

among


ITRON, INC.,
as the Company,

THE FOREIGN BORROWERS FROM TIME TO TIME PARTY HERETO,

CERTAIN SUBSIDIARIES OF THE COMPANY
FROM TIME TO TIME PARTY HERETO,
as Guarantors,

THE LENDERS PARTY HERETO,

WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Administrative Agent, U.S. Swingline Lender, U.S. Issuing Lender and Multicurrency Issuing Lender,

JPMORGAN CHASE BANK, N.A.,
as Multicurrency Swingline Lender, U.S. Issuing Lender and Multicurrency Issuing Lender,

J.P. MORGAN EUROPE LIMITED,
as Multicurrency Issuing Lender,

J.P. MORGAN SECURITIES PLC,
as Multicurrency Swingline Lender,

BNP PARIBAS,
as Multicurrency Issuing Lender,

and

SILICON VALLEY BANK,
as U.S. Issuing Lender and Multicurrency Issuing Lender,

dated as of January 5, 2018

WELLS FARGO SECURITIES, LLC
and
JPMORGAN CHASE BANK, N.A.,
as Joint Lead Arrangers and Joint Bookrunners,

JPMORGAN CHASE BANK, N.A.,
as Syndication Agent,

and

BANK OF THE WEST,
BNP PARIBAS,
ING BANK N.V., DUBLIN BRANCH
and
U.S. BANK NATIONAL ASSOCIATION,
as Co-Documentation Agents

WELLSFARGOLOGO.JPG







TABLE OF CONTENTS
 
 
Page
ARTICLE I DEFINITIONS
1

Section 1.1
Defined Terms
1

Section 1.2
Other Definitional Provisions
45

Section 1.3
Accounting Terms
45

Section 1.4
Time References
46

Section 1.5
Execution of Documents
46

Section 1.6
Redenomination of Certain Foreign Currencies and Computation of Dollar Amounts; Exchange Rates; Currency Equivalents; Alternate Funding Office
46

Section 1.7
Alternative Currencies
48

Section 1.8
Limited Condition Acquisitions
51

Section 1.9
Rates
52

 
 
 
ARTICLE II THE LOANS; AMOUNT AND TERMS
52

Section 2.1
Revolving Loans
52

Section 2.2
Term Loan
55

Section 2.3
Letter of Credit Subfacility
57

Section 2.4
Swingline Loan Subfacility
61

Section 2.5
Fees
64

Section 2.6
Commitment Reductions
65

Section 2.7
Prepayments
66

Section 2.8
Default Rate and Payment Dates
69

Section 2.9
Conversion Options
69

Section 2.10
Computation of Interest and Fees; Usury
70

Section 2.11
Pro Rata Treatment and Payments
71

Section 2.12
Non-Receipt of Funds by the Administrative Agent
75

Section 2.13
Inability to Determine Interest Rate
76

Section 2.14
Yield Protection
79

Section 2.15
Compensation for Losses; Eurocurrency Liabilities
80

Section 2.16
Taxes
81

Section 2.17
Indemnification; Nature of the Issuing Lenders’ Duties
88

Section 2.18
Illegality
89

Section 2.19
Replacement of Lenders
90

Section 2.20
Cash Collateral
91

Section 2.21
Defaulting Lenders
92

Section 2.22
Incremental Facility
95

Section 2.23
Foreign Borrowers
97

 
 
 
ARTICLE III REPRESENTATIONS AND WARRANTIES
100

Section 3.1
Financial Condition
100

Section 3.2
No Material Adverse Effect
101

Section 3.3
Corporate Existence; Patriot Act Information
102

Section 3.4
Corporate Power; Compliance with Laws Authorization; Enforceable Obligations; No Default
102


i




Section 3.5
Senior Indebtedness Status
102

Section 3.6
No Material Litigation
103

Section 3.7
Investment Company Act; etc
103

Section 3.8
Margin Regulations
103

Section 3.9
Labor Matters
103

Section 3.10
Environmental Matters
104

Section 3.11
Use of Proceeds
105

Section 3.12
Subsidiaries; Joint Ventures; Partnerships
105

Section 3.13
Ownership
105

Section 3.14
Consent; Governmental Authorizations
106

Section 3.15
Taxes
106

Section 3.16
Indebtedness
107

Section 3.17
Solvency
107

Section 3.18
Compliance with FCPA
107

Section 3.19
No Burdensome Restrictions
108

Section 3.20
[Reserved.]
108

Section 3.21
Labor Matters, Etc
108

Section 3.22
Accuracy and Completeness of Information
108

Section 3.23
Material Contracts
108

Section 3.24
Insurance
109

Section 3.25
Security Documents
109

Section 3.26
Anti-Terrorism Laws
109

Section 3.27
Compliance with OFAC Rules and Regulations
109

Section 3.28
Centre of Main Interests and Establishments
110

 
 
 
ARTICLE IV CONDITIONS PRECEDENT
110

Section 4.1
Conditions to Extensions of Credit on the Restatement Effective Date
110

Section 4.2
Conditions to All Extensions of Credit Following the Restatement Effective Date
114

 
 
 
ARTICLE V AFFIRMATIVE COVENANTS
115

Section 5.1
Financial Statements
115

Section 5.2
Certificates; Other Information
117

Section 5.3
Payment of Taxes, Etc
118

Section 5.4
Preservation of Corporate Existence, Etc
118

Section 5.5
Maintenance of Property; Insurance
118

Section 5.6
Maintenance of Books and Records
119

Section 5.7
Notices
119

Section 5.8
Environmental Laws
120

Section 5.9
Additional Guarantors
121

Section 5.10
Compliance with Law
121

Section 5.11
Pledged Assets
121

Section 5.12
Use of Proceeds
123

Section 5.13
Further Assurances
123

Section 5.14
U.K. Pensions
124


ii




Section 5.15
Post-Closing
124

 
 
 
ARTICLE VI NEGATIVE COVENANTS
125

Section 6.1
Indebtedness
125

Section 6.2
Liens
127

Section 6.3
Nature of Business
129

Section 6.4
Consolidation, Merger, Sale of Assets, etc
130

Section 6.5
Advances, Investments and Loans
132

Section 6.6
Sale and Leasebacks
133

Section 6.7
Transactions with Affiliates
133

Section 6.8
Corporate Changes
134

Section 6.9
Payment Restrictions Affecting Subsidiaries
134

Section 6.10
Restricted Payments
134

Section 6.11
Prepayments, Etc., of Debt
135

Section 6.12
No Further Negative Pledges
135

Section 6.13
Financial Covenants
136

 
 
 
ARTICLE VII EVENTS OF DEFAULT
136

Section 7.1
Events of Default
136

Section 7.2
Acceleration; Remedies
139

 
 
 
ARTICLE VIII THE ADMINISTRATIVE AGENT
139

Section 8.1
Appointment and Authority
139

Section 8.2
Nature of Duties
140

Section 8.3
Exculpatory Provisions
141

Section 8.4
Reliance by Administrative Agent
141

Section 8.5
Notice of Default
142

Section 8.6
Non-Reliance on Administrative Agent and Other Lenders
142

Section 8.7
Indemnification
142

Section 8.8
Administrative Agent in Its Individual Capacity
143

Section 8.9
Successor Administrative Agent
143

Section 8.10
Collateral and Guaranty Matters
144

Section 8.11
Bank Products
145

 
 
 
ARTICLE IX COLLECTION ACTION MECHANISM
145

Section 9.1
Implementation of CAM
145

Section 9.2
Letters of Credit
146

Section 9.3
Provisions Solely to Effect Intercreditor Relationships
148

 
 
 
ARTICLE X MISCELLANEOUS
148

Section 10.1
Amendments, Waivers, Consents and Release of Collateral
148

Section 10.2
Notices
152

Section 10.3
No Waiver; Cumulative Remedies
154

Section 10.4
Survival of Representations and Warranties
154


iii




Section 10.5
Payment of Expenses and Taxes; Indemnity; Waiver of Consequential Damages
154

Section 10.6
Successors and Assigns; Participations
156

Section 10.7
Right of Set‑off; Sharing of Payments
160

Section 10.8
Table of Contents and Section Headings
161

Section 10.9
Counterparts; Effectiveness; Electronic Execution
162

Section 10.10
Severability
162

Section 10.11
Integration
162

Section 10.12
Governing Law
162

Section 10.13
Consent to Jurisdiction; Service of Process and Venue
162

Section 10.14
Confidentiality
163

Section 10.15
Acknowledgments
164

Section 10.16
Waivers of Jury Trial
165

Section 10.17
Patriot Act Notice
165

Section 10.18
Resolution of Drafting Ambiguities
165

Section 10.19
Subordination of Intercompany Debt
165

Section 10.20
Continuing Agreement
166

Section 10.21
Amendment and Restatement
166

Section 10.22
Press Releases and Related Matters
168

Section 10.23
Appointment of the Company
168

Section 10.24
No Advisory or Fiduciary Responsibility
168

Section 10.25
Responsible Officers
169

Section 10.26
Judgment Currency
169

Section 10.27
German Foreign Trade and Payments Regulation
170

Section 10.28
Acknowledgement and Consent to Bail-In of EEA Financial Institutions
170

 
 
 
ARTICLE XI GUARANTY
170

Section 11.1
The Guaranty
170

Section 11.2
Bankruptcy
171

Section 11.3
Nature of Liability
171

Section 11.4
Independent Obligation
172

Section 11.5
Authorization
172

Section 11.6
Reliance
172

Section 11.7
Waiver
172

Section 11.8
Limitation on Enforcement
174

Section 11.9
Confirmation of Payment; Release
174

Section 11.10
Keepwell
174




iv




Schedules
 
 
 
 
 
Schedule 1.1(a)
 
Existing Company Letters of Credit
Schedule 1.1(b)
 
Existing Target Letters of Credit
Schedule 1.1(c)
 
Immaterial Subsidiaries
Schedule 2.1
 
Schedule of Lenders and Commitments
Schedule 2.16(f)
 
Original Parties
Schedule 3.3
 
Patriot Act Information
Schedule 3.6
 
Litigation
Schedule 3.12
 
Subsidiaries
Schedule 3.13
 
Real Property
Schedule 3.14
 
Authorizations, Approvals, Actions, Notes & Filings
Schedule 3.16
 
Indebtedness
Schedule 3.23
 
Material Contracts
Schedule 3.24
 
Insurance
Schedule 5.15
 
Post-Closing Agreements
Schedule 6.2
 
Liens
Schedule 6.5
 
Investments
 
 
 
 
 
 
Exhibits
 
 
 
 
 
Exhibit A
 
Form of Assignment and Assumption
Exhibit B
 
Form of Joinder Agreement
Exhibit C
 
Form of Notice of Borrowing
Exhibit D
 
Form of Notice of Conversion/Continuation
Exhibit E
 
Form of Bank Product Provider Notice
Exhibit F
 
Form of Term Loan Note
Exhibit G-1
 
Form of Company Revolving Loan Note
Exhibit G-2
 
Form of Foreign Borrower Revolving Loan Note
Exhibit H-1
 
Form of Company Swingline Loan Note
Exhibit H-2
 
Form of Foreign Borrower Swingline Loan Note
Exhibit I
 
Form of U.S. Tax Compliance Certificate
Exhibit J-1
 
Form of Perfection Certificate
Exhibit J-2
 
Form of Perfection Certificate Supplement
Exhibit K
 
Form of Solvency Certificate
Exhibit L
 
[Reserved]
Exhibit M
 
Form of Officer’s Compliance Certificate
Exhibit N
 
Form of Foreign Working Capital Collateral Agency Agreement
Exhibit O
 
Form of Foreign Borrower Request
Exhibit P
 
Form of Mortgage
Exhibit Q
 
Form of Foreign Parent Guaranty Agreement


v




THIS SECOND AMENDED AND RESTATED CREDIT AGREEMENT , dated as of January 5, 2018, is by and among ITRON, INC. , a Washington corporation (the “ Company ”), the Foreign Borrowers (this, and other capitalized terms used but not defined in this preamble being defined as set forth in Section 1.1), the Guarantors, the Lenders, WELLS FARGO BANK, NATIONAL ASSOCIATION , a national banking association, as Administrative Agent, U.S. Swingline Lender, U.S. Issuing Lender and Multicurrency Issuing Lender, JPMORGAN CHASE BANK, N.A. , as Multicurrency Swingline Lender, U.S. Issuing Lender and Multicurrency Issuing Lender, J.P. MORGAN EUROPE LIMITED , as Multicurrency Issuing Lender, J.P. MORGAN SECURITIES PLC, as Multicurrency Swingline Lender, and BNP PARIBAS , as Multicurrency Issuing Lender.

W I T N E S S E T H :

WHEREAS, the Credit Parties have requested that the Administrative Agent and the Lenders amend and restate the Existing Credit Agreement in the form of this Agreement and, pursuant to this Agreement, make loans and other financial accommodations to the Borrowers, as more particularly described herein; and
WHEREAS , the Administrative Agent and the Lenders have agreed to amend and restate the Existing Credit Agreement in the form of this Agreement and, pursuant to this Agreement, make such loans and other financial accommodations to the Borrowers on the terms and conditions contained herein.
NOW, THEREFORE , for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties hereto, such parties hereby agree as follows:

ARTICLE I
DEFINITIONS
Section 1.1      Defined Terms .
As used in this Agreement, terms defined in the preamble to this Agreement have the meanings therein indicated, and the following terms have the following meanings:
2017 Senior Notes ” shall mean the 5.00% senior notes due 2026 in an aggregate principal amount of $300,000,000, issued pursuant to the 2017 Senior Notes Indenture on December 22, 2017.
2017 Senior Notes Indenture ” shall mean the Indenture dated as of December 22, 2017, among the Company, the guarantors from time to time party thereto and U.S. Bank National Association.
Acquired Company ” shall have the meaning set forth in the definition of "Transactions".
Acquisition ” shall mean an acquisition or any series of related acquisitions by a Group Member of (a) all or substantially all of the assets or not less than a majority of the outstanding Voting Stock or economic interests of a Person, (b) a Person that is incorporated, formed or organized by a merger, amalgamation or consolidation or any other combination with such Person or (c) any division, line of business or other business unit of a Person (such Person or such division, line of business or other business unit of such Person shall be referred to herein as the “ Target ”).
Acquisition Agreement " shall have the meaning set forth in the definition of "Transactions".





Additional Alternative Currency ” shall have the meaning set forth in Section 1.7(d).
Additional Alternative Currency Lender ” shall have the meaning set forth in Section 1.7(d).
Additional Alternative Currency Loans ” shall have the meaning set forth in Section 1.7(d).
Additional Credit Party ” shall mean each Person that (a) becomes a Guarantor by execution of a (i) Joinder Agreement in accordance with Section 5.9 or (ii) a Foreign Parent Guaranty Agreement or a Foreign Parent Guaranty Joinder Agreement, as applicable, in accordance with Section 2.23 or Section 5.9 or (b) becomes a Foreign Borrower in accordance with Section 2.23.
Additional Credit Party Consents ” shall mean evidence that all boards of directors (or comparable entity management bodies), governmental, shareholder and material third party consents and approvals necessary in connection with the joinder of the applicable Additional Credit Party have been obtained and all applicable waiting periods have expired without any action being taken by any authority that could restrain, prevent or impose any material adverse conditions on such transaction or that could seek or threaten any of the foregoing.
Additional Real Property ” shall have the meaning set forth in Section 5.11(c).
Additional Revolving Facility ” shall have the meaning set forth in Section 2.22(a).
Administrative Agent ” or “ Agent ” shall mean Wells Fargo, in its capacity as administrative agent for the Lenders hereunder, and shall include any successors in such capacity.
Administrative Questionnaire ” shall mean an Administrative Questionnaire in a form supplied by the Administrative Agent.
Affiliate ” shall mean, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by, or is under common Control with, the Person specified.
Agent Indemnitee ” shall have the meaning set forth in Section 8.7.
Agreement ” or “ Credit Agreement ” shall mean this Agreement, as amended, extended, restated, supplemented or otherwise modified from time to time.
Alternate Base Rate ” shall mean, for any day, a rate per annum equal to the greatest of (a) the Prime Rate in effect on such day, (b) the Federal Funds Effective Rate in effect on such day plus 1/2 of 1.0% and (c) the sum of (i) LIBOR (as determined pursuant to the definition of LIBOR), for an Interest Period of one (1) month commencing on such day plus (ii) 1.0%, in each instance as of such date of determination. For purposes hereof: “ Prime Rate ” shall mean, at any time, the rate of interest per annum publicly announced or otherwise identified from time to time by the Administrative Agent as its prime rate. Each change in the Prime Rate shall be effective as of the opening of business on the day such change in the Prime Rate occurs. The parties hereto acknowledge that the rate announced publicly by the Administrative Agent as its Prime Rate is an index or base rate and shall not necessarily be its lowest or best rate charged to its customers or other banks; and “ Federal Funds Effective Rate ” shall mean, for any day, the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published on the next succeeding Business Day, the average of the quotations for the day of such transactions received by the Administrative Agent from three (3) federal funds brokers of recognized standing selected by it.


2





Notwithstanding the foregoing, in no event shall the Federal Funds Effective Rate be less than 0.0%. If for any reason the Administrative Agent shall have determined (which determination shall be conclusive in the absence of manifest error) (A) that it is unable to ascertain the Federal Funds Effective Rate, for any reason, including the inability or failure of the Administrative Agent to obtain sufficient quotations in accordance with the terms above or (B) that the Prime Rate or LIBOR no longer accurately reflects an accurate determination of the prevailing Prime Rate or LIBOR, the Administrative Agent may select a reasonably comparable index or source to use as the basis for the Alternate Base Rate, until the circumstances giving rise to such inability no longer exist. Any change in the Alternate Base Rate due to a change in any of the foregoing will become effective on the effective date of such change in the Federal Funds Effective Rate, the Prime Rate or LIBOR for an Interest Period of one (1) month. Notwithstanding anything contained herein to the contrary, (x) to the extent that the provisions of Section 2.13 shall be in effect in determining LIBOR pursuant to clause (c) hereof, the Alternate Base Rate shall be the greater of (i) the Prime Rate in effect on such day and (ii) the Federal Funds Effective Rate in effect on such day plus 1/2 of 1.0% and (y) in no event shall the Alternate Base Rate be less than 0.0%.
Alternate Base Rate Loans ” shall mean Loans that bear interest at an interest rate based on the Alternate Base Rate.
Alternative Currency ” shall mean any freely available currency other than Dollars, Euros or British Pounds Sterling requested by any Borrower and approved in accordance with Section 1.7, which is then freely transferable and freely convertible into Dollars and in which dealings are carried on in the London interbank market (it being understood and agreed that, solely with respect to Wells Fargo Bank, National Association, acting in its capacity as Multicurrency Issuing Lender with respect to the issuance hereunder of Letters of Credit, but, in any event, only so long as the issuance of Letters of Credit in such Alternative Currency by Wells Fargo Bank, National Association, is permitted by applicable laws and internal policies, Alternative Currencies shall include Mexican Pesos, Saudi Riyals, Brazilian Reals, Hong Kong Dollars, Australian Dollars, New Zealand Dollars, Singapore Dollars and United Arab Emirates Dirham).
Anti-Terrorism Order ” shall mean that certain Executive Order 13224 signed into law on September 23, 2001.
Applicable Foreign Borrower Documents ” shall have the meaning set forth in Section 2.23(e)(i).
Applicable Margin ” shall mean, for any day, the rate per annum set forth below opposite the applicable level then in effect (based on the Total Leverage Ratio), it being understood that the Applicable Margin for (a) Eurocurrency Loans shall be the percentage set forth under the column “Eurocurrency Margin & LOC Fee”, (b) Alternate Base Rate Loans shall be the percentage set forth under the column “Base Rate Margin”, (c) the Letter of Credit Fee shall be the percentage set forth under the column “Eurocurrency Margin & LOC Fee”, and (d) the Commitment Fee shall be the percentage set forth under the column “Commitment Fee”:



3





Applicable Margin

Level

Total Leverage Ratio
Eurocurrency Margin
& LOC Fee
Base Rate Margin
Commitment Fee
I
Less than 1.00 to 1.00
1.00%
0.00%
0.175%
II
Greater than or equal to 1.00 to 1.00 but less than 2.00 to 1.00
1.25%
0.25%
0.20%
III
Greater than or equal to 2.00 to 1.00 but less than 2.75 to 1.00
1.50%
0.50%
0.25%
IV
Greater than or equal to 2.75 to 1.00 but less than 3.50 to 1.00
1.75%
0.75%
0.25%
V
Greater than or equal to 3.50 to 1.00 but less than 4.25 to 1.00
2.00%
1.00%
0.30%
VI
Greater than or equal to 4.25 to 1.00
2.25%
1.25%
0.35%

The Applicable Margin shall, in each case, be determined and adjusted quarterly on the date five (5) Business Days after the date on which the Administrative Agent has received from the Company the quarterly financial information (in the case of the first three (3) fiscal quarters of the Company’s fiscal year), the annual financial information (in the case of the fourth fiscal quarter of the Company’s fiscal year) and the certifications required to be delivered to the Administrative Agent and the Lenders in accordance with the provisions of Sections 5.1(a), 5.1(b) and 5.2(b) (each such date, an “ Interest Determination Date ”). Such Applicable Margin shall be effective from such Interest Determination Date until the next such Interest Determination Date. After the Restatement Effective Date, if the Credit Parties shall fail to provide the financial information or certifications in accordance with the provisions of Sections 5.1(a), 5.1(b) and 5.2(b), the Applicable Margin shall, on the date five (5) Business Days after the date by which the Credit Parties were so required to provide such financial information or certifications to the Administrative Agent and the Lenders, be based on Level VI until such time as such information or certifications or corrected information or corrected certifications are provided, whereupon the Level shall be determined by the then current Total Leverage Ratio. Notwithstanding the foregoing, the initial Applicable Margins shall be as set forth in Level V until the financial information and certifications required to be delivered pursuant to Section 5.1 and 5.2 for the fiscal quarter ended on March 31, 2018, have been delivered to the Administrative Agent, for distribution to the Lenders. In the event that any financial statement or certification delivered pursuant to Sections 5.1 or 5.2 is shown to be inaccurate (regardless of whether this Agreement or the Commitments are in effect when such inaccuracy is discovered), and such inaccuracy, if corrected, (a) would have led to the application of a higher Applicable Margin for any period (an “ Applicable Period ”) than the Applicable Margin applied for such Applicable Period, the Company shall promptly (i) deliver to the Administrative Agent a corrected compliance certificate for such Applicable Period, (ii) determine the Applicable Margin for such Applicable Period based upon the corrected compliance certificate and (iii) promptly pay to the Administrative Agent for the benefit of the Lenders the accrued additional interest and other fees owing as a result of such increased Applicable Margin for such Applicable Period, which payment shall be promptly distributed by the Administrative Agent to the Lenders entitled thereto and (b) would lead to the application of a lower Applicable Margin than the Applicable Margin then being applied, the Company shall promptly (i) deliver to the Administrative Agent a corrected compliance certificate and (ii) determine the current Applicable Margin based upon the corrected compliance certificate, in which event the lower Applicable Margin shall be effective commencing on the date five (5) Business Days after the date of delivery of such compliance certificate until the next Interest Determination Date (for the avoidance of doubt, in no event shall the Company be entitled to receive a refund of or credit for any amounts previously paid by it in connection with the application of the higher Applicable Margin). It is acknowledged and agreed that nothing


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contained herein shall limit the rights of the Administrative Agent and the Lenders under the Credit Documents, including their rights under Section 2.8 and Article VII.
Applicable Time ” shall mean, with respect to any borrowings and payments in Foreign Currencies, the local times in the place of settlement for such Foreign Currencies as may be reasonably determined by the Administrative Agent or the applicable Issuing Lender, as the case may be, to be necessary for timely settlement on the relevant date in accordance with normal banking procedures in the place of payment.
Applicant Borrower ” shall have the meaning set forth in Section 2.23(a).
Applicant Borrower Documents ” shall have the meaning set forth in Section 2.23(a).
Approved Bank ” shall have the meaning set forth in the definition of “Cash Equivalents.”
Approved Fund ” shall mean any Fund that is administered, managed or underwritten by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.
Arrangers ” shall mean, collectively, WFS and JPMorgan Chase Bank, N.A., in their capacities as joint lead arrangers and joint bookrunners with respect to this Agreement.
Asset Sale ” shall mean (a) any conveyance, sale, lease, sublease, assignment, transfer or other disposition (including (i) by way of merger or consolidation or amalgamation and (ii) any sale and leaseback transaction) of any property pursuant to Section 6.4(b)(xii) and (b) any sale of any Equity Interests of any Subsidiary of the Company and any issuance of any Equity Interests by any Subsidiary of the Company, in each case, to any Person other than any other Group Member; provided that Asset Sales shall not include any transaction or series of related transactions involving property (including Equity Interests) with a fair market value of less than $10,000,000.
Assignment and Assumption ” shall mean an assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required by Section 10.6), and accepted by the Administrative Agent, in substantially the form of Exhibit A or any other form approved by the Administrative Agent.
Bail-In Action ” shall mean, as to any EEA Financial Institution, the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of such EEA Financial Institution.
Bail-In Legislation ” shall mean, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.
Bank Guarantee ” shall mean a direct guarantee issued by the Issuing Lender pursuant to the terms hereof and in form acceptable to the Issuing Lender, ensuring that a liability acceptable to the Issuing Lender of any Group Member to a third Person will be met or any other indemnity, bond, undertaking or similar instrument or engagement (in such form as the applicable Issuing Lender may approve) from time to time issued, established or maintained by such Issuing Lender (or which such Issuing Lender arranges to be issued, established or maintained) pursuant to one or more requests by the Company.


5





Bank Product Provider ” shall mean any counterparty to a Hedging Agreement or Treasury Services Agreement if, (a) at the date of entering into such Hedging Agreement or Treasury Services Agreement, such person was an Arranger, an Agent, a Lender or an Affiliate of an Arranger, an Agent or a Lender and such person executes and delivers to the Administrative Agent a Bank Product Provider Notice within thirty (30) days after entering into such Hedging Agreement or Treasury Services Agreement or (b) with respect to a Hedging Agreement or Treasury Services Agreement in effect on the Restatement Effective Date, such person was an Arranger, an Agent, a Lender or an Affiliate of an Arranger, an Agent or a Lender on the Restatement Effective Date.
Bank Product Provider Notice ” shall mean a notice substantially in the form of Exhibit E .
Bankruptcy Code ” shall mean the Bankruptcy Code in Title 11 of the United States Code.
Bankruptcy Event ” shall mean any of the events described in Section 7.1(e).
Basel III ” means: (a) the agreements on capital requirements, a leverage ratio and liquidity standards contained in “Basel III: A global regulatory framework for more resilient banks and banking systems”, “Basel III: International framework for liquidity risk measurement, standards and monitoring” and “Guidance for national authorities operating the countercyclical capital buffer” published by the Basel Committee on Banking Supervision in December 2010 each as amended, supplemented or restated; (b) the rules for global systemically important banks contained in “Global systemically important banks: assessment methodology and the additional loss absorbency requirement — Rules text” published by the Basel Committee on Banking Supervision in November 2011, as amended, supplemented or restated; and (c) any further guidance or standards published by the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or a foreign regulatory authority relating to “Basel III”.
Borrowers ” shall mean the Company and the Foreign Borrowers, and “ Borrower ” shall mean any of them.
Borrowing Date ” shall mean, in respect of any Loan, the date such Loan is made.
British Pounds Sterling ” and “ £ ” shall mean British pounds sterling, the lawful currency of the U.K.
Business ” shall have the meaning set forth in Section 3.10(b).
Business Day ” shall mean any day other than a Saturday, Sunday or other day on which commercial banks in Charlotte, North Carolina or New York, New York are authorized or required by law to close; provided , however , that (a) when used in connection with a rate determination, borrowing or payment in respect of a LIBOR Market Index Rate Loan or a LIBOR Rate Loan, the term “Business Day” shall also exclude any day on which banks in London, England are not open for dealings in Dollar deposits in the London interbank market, (b) with respect to any EURIBOR Market Index Rate Loan or EURIBOR Rate Loan or any other Loan or Letter of Credit denominated in a Foreign Currency, the term “Business Day” shall also exclude any day that is not a Target Settlement Day and (c) in the case of a Loan or a Letter of Credit denominated in a Foreign Currency, the term “Business Day” shall also exclude (i) any day on which commercial banks in the jurisdiction of organization or incorporation, as applicable, of the Borrower of such Loan or the applicant of such Letter of Credit, as applicable, are authorized or required by law to close and (ii) any day on which dealings in deposits in the applicable currency are not carried out on the London interbank market.


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CAM ” shall mean the mechanism for the allocation and exchange of interests in the Facilities and collections thereunder established under Article IX.
CAM Exchange ” shall mean the exchange of the Lenders’ interests provided for in Section 9.1.
CAM Exchange Date ” shall mean the first date after the Restatement Effective Date on which there shall occur (a) any event described in Section 7.1(e) with respect to any Borrower or (b) an acceleration of the maturity of any Loans pursuant to Section 7.2.
CAM Percentage ” shall mean, as to each Lender, a fraction, expressed as a decimal to twelve (12) decimal places, of which (a) the numerator shall be the sum, without duplication of (i) the aggregate Designated Obligations owed to such Lender, plus , (ii) such Lender’s Participation Interests in the aggregate outstanding LOC Obligations, Swingline Loans and Additional Alternative Currency Loans, if any, in each case, immediately prior to the CAM Exchange Date, and (b) the denominator shall be the sum, without duplication, of (x) the aggregate Designated Obligations owed to all the Lenders, plus , (y) the aggregate outstanding LOC Obligations, Swingline Loans and Additional Alternative Currency Loans, in each case, immediately prior to such CAM Exchange Date. For purposes of computing each Lender’s CAM Percentage, all Obligations which shall be denominated in a Foreign Currency shall, for purposes of this calculation, be deemed converted into its Dollar Equivalent on the CAM Exchange Date.
CAM Tranche ” means a category of Commitments and extensions of credit thereunder; provided that, each of the following shall comprise a separate CAM Tranche: (i) Letters of Credit issued for the account of, and the Swingline Loans and Revolving Loans made to, the Company, (ii) Letters of Credit issued for the account of, and Swingline Loans and Revolving Loans made to, any Foreign Borrower, (iii) Letters of Credit issued for the account of, and the Swingline Loans and Revolving Loans made to, the Company pursuant to any Additional Revolving Facility, (iv) Letters of Credit issued for the account of, and Swingline Loans and Revolving Loans made to, any Foreign Borrower pursuant to any Additional Revolving Facility, (v) the Term Loans, (vi) the Incremental Term Loans (if any) and (vii) the Additional Alternative Currency Loans (if any).
Capital Lease ” shall mean any lease of property, real or personal, the obligations with respect to which are required to be capitalized on a balance sheet of the lessee in accordance with GAAP as in effect on the Restatement Effective Date.
Cash Collateralize ” shall mean to pledge and deposit with or deliver to the Administrative Agent, for the benefit of the Administrative Agent, one or more Issuing Lenders or Swingline Lenders (as applicable) and the Lenders, as collateral for LOC Obligations, obligations in respect of Swingline Loans, or obligations of Lenders to fund participations in respect of either thereof (as the context may require), cash or deposit account balances or, if the applicable Issuing Lender or applicable Swingline Lender benefiting from such collateral shall agree in its sole discretion, other credit support, in each case pursuant to documentation in form and substance satisfactory to (a) the Administrative Agent and (b) the applicable Issuing Lenders or the applicable Swingline Lenders. “ Cash Collateral ” shall have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral and other credit support.
Cash Equivalents ” shall mean (a) securities issued or directly and fully guaranteed or insured by the United States of America or any agency or instrumentality thereof ( provided that the full faith and credit of the United States of America is pledged in support thereof) having maturities of not more than twelve (12) months from the date of acquisition (“ Government Obligations ”), (b) Dollar or Foreign Currency denominated time deposits, certificates of deposit, Eurodollar time deposits and Eurodollar certificates of deposit of (i) any U.S. commercial bank of recognized standing having capital and surplus in excess of


7





$500,000,000 or (ii) any bank whose short-term commercial paper rating at the time of the acquisition thereof is at least A-1 or the equivalent thereof from S&P or from Moody’s is at least P-1 or the equivalent thereof from Moody’s (any such bank being an “ Approved Bank ”), in each case with maturities of not more than 365/366 days from the date of acquisition, (c) commercial paper and variable or fixed rate notes issued by any Approved Bank (or by the parent company thereof) or any variable rate notes issued by, or guaranteed by any domestic corporation rated A‑1 (or the equivalent thereof) or better by S&P or P-1 (or the equivalent thereof) or better by Moody’s and maturing within twelve (12) months of the date of acquisition, (d) repurchase agreements with a term of not more than thirty (30) days with a bank or trust company (including a Lender) or a recognized securities dealer having capital and surplus in excess of $500,000,000 for direct obligations issued by or fully guaranteed by the United States of America, (e) obligations of any state of the United States or any political subdivision thereof for the payment of the principal and redemption price of and interest on which there shall have been irrevocably deposited Government Obligations maturing as to principal and interest at times and in amounts sufficient to provide such payment, (f) money market accounts subject to Rule 2a-7 of the Investment Company Act of 1940 (“ Rule 2a-7 ”) which consist primarily of cash and cash equivalents set forth in clauses (a) through (e) above and of which 95% shall at all times be comprised of First Tier Securities (as defined in Rule 2a-7) and any remaining amount shall at all times be comprised of Second Tier Securities (as defined in Rule 2a-7), (g) shares of any so-called “money market fund”; provided that such fund is registered under the Investment Company Act of 1940, has net assets of at least $500,000,000 and has an investment portfolio with an average maturity of 365/366 days or less, (h) demand deposit accounts maintained in the ordinary course of business and (i) Investments made in jurisdictions outside of the United States, where Group Members conduct business which are of a type and credit quality, comparable for such jurisdiction, to the Investments described in clauses (a) through (h) above.
Casualty Event ” shall mean any event that gives rise to the receipt by any Group Member of any insurance proceeds (other than proceeds of business interruption insurance) or condemnation awards; provided that any event or series of related events with respect to which the Net Cash Proceeds received by Company or any of its Subsidiaries does not exceed $10,000,000 shall not constitute a “Casualty Event” hereunder.
Change in Law ” shall mean the occurrence, after the Restatement Effective Date, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided , that notwithstanding anything herein to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (ii) the implementation or application of or compliance with Basel III and all requests, rules, guidelines or directives thereunder or issued in connection therewith by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities shall be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.
Change of Control shall mean the occurrence of any of the following: (a) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act) is or becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that for purposes of this clause (a) such person or group shall be deemed to have “beneficial ownership” of all securities that such person or group has the right to acquire, whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of Voting Stock of the Company representing more than 30% of the voting power of the total outstanding Voting Stock of the Company; (b) during any period of two (2) consecutive years, individuals who at the beginning of such period constituted the board of directors of the Company (together


8





with any new directors whose election to such board of directors or whose nomination for election was approved by a vote of a majority of the members of the board of directors of the Company, which members comprising such majority are then still in office and were either directors at the beginning of such period or whose election or nomination for election was previously so approved) cease for any reason to constitute a majority of the board of directors of the Company; or (c) at any time a change of control occurs under and as defined in any documentation relating to any Material Indebtedness. For purposes of this definition, a person shall not be deemed to have beneficial ownership of Equity Interests subject to a stock purchase agreement, merger agreement or similar agreement until the consummation of the transactions contemplated by such agreement.
Co-Documentation Agent ” shall mean, collectively, Bank of the West, BNP Paribas, ING Bank N.V., Dublin Branch and U.S. Bank National Association, in their capacities as co-documentation agents with respect to this Agreement.
Code ” shall mean the Internal Revenue Code of 1986.
Collateral ” shall mean a collective reference to the collateral which is identified in, and at any time will be, or is purported to be, covered by, the Security Documents and any other property or assets of a Credit Party, whether tangible or intangible and whether real or personal, that may from time to time secure the Obligations; provided that there shall be excluded from the Collateral (a) any account, instrument, chattel paper or other obligation or property of any kind due from, owed by, or belonging to, a Sanctioned Person or Sanctioned Entity, (b) any lease in which the lessee is a Sanctioned Person or Sanctioned Entity and (c) the existing real property of the Group Members set forth on Schedule 3.13 .
Collateral Agent ” shall have the meaning set forth in Section 8.1.
Commodity Exchange Act ” shall mean the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.
Commitment ” shall mean the Term Loan Commitments, the Revolving Commitments, the LOC Commitments and the Swingline Commitments, individually or collectively, as appropriate.
Commitment Fee ” shall have the meaning set forth in Section 2.5(a).
Commitment Percentage ” shall mean the Revolving Commitment Percentage and/or the Term Loan Commitment Percentage, as appropriate.
Commitment Period ” shall mean (a) with respect to Revolving Loans and Swingline Loans, the period from and including the Restatement Effective Date to but excluding the Maturity Date and (b) with respect to Letters of Credit, the period from and including the Restatement Effective Date to but excluding the date that is thirty (30) days prior to the Maturity Date.
Committed Funded Exposure ” shall mean, as to any Lender at any time, the aggregate principal amount at such time (without duplication) of its outstanding Revolving Loans, LOC Obligations and Participation Interests at such time.
Commonly Controlled Entity ” shall mean an entity, whether or not incorporated, which is under common control with the Company within the meaning of Section 4001(b)(1) of ERISA or is part of a group which includes the Company and which is treated as a single employer under Section 414(b) or 414(c) of the Code or, solely for purposes of Section 412 of the Code to the extent required by such Section, Section 414(m) or 414(o) of the Code.


9





Company ” shall have the meaning set forth in the first paragraph of this Agreement.
Company Guarantors ” shall mean the Domestic Subsidiaries of the Company as are, or may from time to time, pursuant to Section 5.9 hereof, become parties to this Agreement; provided that no Immaterial Subsidiary shall be required to become a Guarantor.
Consolidated ” shall mean, when used with reference to financial statements or financial statement items of the Company and its Subsidiaries, or any other Person, such statements or items on a consolidated basis in accordance with the consolidation principles of GAAP.
Consolidated EBITDA ” shall mean, as of any date of determination, for the Company and its Subsidiaries on a Consolidated basis determined in accordance with GAAP for the four (4) consecutive fiscal quarter period ending on such date, without duplication:
(a) Consolidated Net Income for such period; plus ,

(b) in each case (other than with respect to clause (xi) below) only to the extent deducted in determining such Consolidated Net Income and without duplication:

(i) Consolidated Interest Expense and any interest expenses relating to amortization of debt discounts, premiums and fees for such period;

(ii) income tax expense for such period;

(iii) depreciation expense for such period;

(iv) amortization expense for such period;

(v) non-recurring cash expenses related to acquisitions and restructurings (other than the Transactions and the Restructure) for such period not to exceed 10.0% of Consolidated EBITDA for such four (4) consecutive fiscal quarter period, and, with respect to restructurings (other than the Restructure), not to exceed $60,000,000 in the aggregate during the term of this Agreement (with respect to all such four (4) fiscal quarter periods ending after the Restatement Effective Date);  

(vi) all Transaction Costs that are expensed during such period;

(vii) non-recurring cash expenses related to the Restructure incurred or expensed during such period and prior to December 31, 2019, not to exceed $60,000,000 in the aggregate with respect to all such four (4) fiscal quarter periods ending after the Restatement Effective Date (inclusive of any such charges incurred prior to the Restatement Effective Date);

(viii) extraordinary losses for such period;

(ix) the aggregate amount of all non-cash charges, expenses or losses reducing Consolidated Net Income (excluding any non-cash charge, expense or loss that results in an accrual of a reserve for cash charges in any future period and any non-cash charge, expense or loss relating to write-offs, write-downs or reserves with respect to accounts or inventory) for such period;


10






(x) all deferred financing costs written off and premiums paid in connection with any early extinguishment of Indebtedness or other derivative instruments; and

(xi) the amount of “run-rate” cost savings projected by the Company in good faith to be realized as the result of actions taken or to be taken on or prior to the date that is 18 months after the Restatement Effective Date, or 18 months after the consummation of any operational change, respectively, and prior to or during such period (calculated on a pro forma basis as though such cost savings had been realized on the first day of such period; it being understood that “run-rate” means the full recurring benefit for a period that is associated with any action taken or committed to be taken), net of the amount of actual benefits realized during such period from such actions; provided that (A) a duly completed certificate signed by a Responsible Officer of the Company shall be delivered to the Administrative Agent together with the officer’s certificate required to be delivered pursuant to Section 5.2(b) , certifying that such cost savings are reasonably anticipated to be realized within 18 months after the Restatement Effective Date or within 18 months after the consummation of any operational change, as applicable, and are factually supportable as determined in good faith by the Company, (B) no cost savings shall be added pursuant to this clause (xi) to the extent duplicative of any expenses or charges otherwise added to Consolidated Net Income, whether through a pro forma adjustment or otherwise, for such period, (C) projected amounts (not yet realized) may no longer be added in calculating Consolidated EBITDA pursuant to this clause (xi) to the extent occurring more than six full fiscal quarters after the specified action taken in order to realize such projected cost savings and (D) for any period of four consecutive fiscal quarters of the Company, the aggregate amount added back to Consolidated EBITDA pursuant to this clause (xi) shall not exceed 20% of Consolidated EBITDA for such period (determined after giving effect to such addbacks); minus ,

(c) in each case, only to the extent included in determining such Consolidated Net Income and without duplication: (i) interest income for such period, (ii) the aggregate amount of all non-cash items increasing Consolidated Net Income (other than the accrual of revenue or recording of receivables in the ordinary course of business) for such period and (iii) extraordinary gains.

Consolidated EBITDA shall be calculated on a Pro Forma Basis to give effect to (i) any Permitted Acquisition or Investment permitted pursuant to Section 6.5(c), 6.5(m) or 6.5(n), (ii) any Asset Sale and (iii) any sale or other disposition pursuant to Section 6.4(b)(iv) (other than any sales or dispositions in the ordinary course of business), in each case, consummated at any time during such period as if each such Permitted Acquisition or Investment had been effected on the first day of such period and as if each such Asset Sale and each such sale or disposition pursuant to Section 6.4(b)(iv) had been consummated on the day prior to the first day of such period.

Consolidated EBITDA shall be deemed to be $63,102,000, $44,514,000, $70,528,000 and $69,366,000 for the fiscal quarters of the Company ended December 31, 2016, March 31, 2017, June 30, 2017 and September 30, 2017, respectively, which amounts shall be further adjusted to give effect to the adjustment described in clause (xi) above.

Consolidated Funded Debt ” shall mean, at any date and without duplication, the amount of Indebtedness of the Company and its Subsidiaries determined on a Consolidated basis determined in accordance with GAAP, but excluding (a) the undrawn amount of all Letters of Credit (other than Letters of


11





Credit issued in respect of (including guarantees of) Indebtedness of another Person of the type described in clauses (a), (b), (e), (h) or (i) of the definition of Indebtedness) and performance bonds and surety bonds which have not been drawn and (b) Obligations referenced in clause (h) of the definition of Indebtedness that are not overdue. The aggregate amount of such Indebtedness shall be determined according to the face or principal amount thereof, based on the amount owing under the applicable Contractual Obligation (without regard to any election by the Company or any Subsidiary to measure an item of Indebtedness using fair value or any other discount to par that may be applicable under GAAP).
Consolidated Interest Expense ” shall mean, for any period, the interest expense of the Company and its Subsidiaries (excluding amortization of debt origination fees and noncash interest expense relating to convertible debt securities) for such period, as determined on a Consolidated basis in accordance with GAAP.
Consolidated Net Assets ” shall mean the book value of all assets of the Company and its Subsidiaries on a Consolidated basis, net of accumulated depreciation and amortization, determined in accordance with GAAP.
Consolidated Net Income ” shall mean, for any period, the net income (or loss) of the Company and its Subsidiaries determined on a Consolidated basis; provided that there shall be excluded from such net income (to the extent otherwise included therein), without duplication:
(a)    the net income (or loss) of any person (other than a Subsidiary of the Company) in which any person other than the Company and its Subsidiaries has an ownership interest, except to the extent that cash in an amount equal to any such income has actually been received by the Company or (subject to clause (b) below) any of its Subsidiaries during such period;

(b)    the net income of any Subsidiary of the Company during such period to the extent that the declaration or payment of dividends or similar distributions by such Subsidiary of that income (other than such amounts paid or permitted to be paid, as principal or interest, on intercompany notes constituting obligations of such Subsidiary owing to (x) the Company or (y) another Subsidiary of the Company to the extent the terms of the organizational documents of such other Subsidiary, or of any direct or indirect parent company of such other Subsidiary, or any agreement, instrument or Requirement of Law, do not restrict the declaration or payment of such amounts as dividends, similar distributions or the payment of principal or interest on intercompany notes, directly or indirectly through one or more intermediate Subsidiaries, to the Company) is not permitted by operation of the terms of its organizational documents or any agreement, instrument or Requirement of Law applicable to that Subsidiary during such period, except that the Company’s equity in the net loss of any such Subsidiary for such period shall be included in determining Consolidated Net Income;

(c)    any gain (or loss) realized during such period by the Company or any of its Subsidiaries upon any Asset Sale or any sale or other disposition pursuant to Section 6.4(b)(iv) (other than any dispositions in the ordinary course of business) by the Company or any of its Subsidiaries;

(d)    gains and losses due solely to fluctuations in currency values determined in accordance with GAAP for such period;

(e)    earnings resulting from any reappraisal, revaluation or write-up of assets; and

(f)    unrealized gains and losses with respect to Hedging Obligations for such period.



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Contractual Obligation ” shall mean, as to any Person, any provision of any security issued by such Person or of any contract, agreement, instrument or undertaking to which such Person is a party or by which it or any of its property is bound.
Contribution Notice ” means a contribution notice issued by the Pensions Regulator under section 38 or 47 of the Pensions Act 2004.
Control ” shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “ Controlling ” and “ Controlled ” have meanings correlative thereto.
Credit Documents ” shall mean this Agreement, each of the Notes, any Joinder Agreement, the Letters of Credit, LOC Documents, any Guaranty, any Foreign Parent Guaranty Agreement, any Foreign Parent Guaranty Joinder Agreement, the Security Documents and all other agreements, documents, certificates and instruments delivered to the Administrative Agent or any Lender by any Credit Party in connection therewith (other than any agreement, document, certificate or instrument related to a Hedging Agreement or a Treasury Services Agreement).
Credit Party ” shall mean any of the Borrowers or the Guarantors.
CTA ” shall mean the United Kingdom Corporation Tax Act 2009.
Debt Issuance ” means the incurrence by any Credit Party of any Indebtedness after the Restatement Effective Date (other than as permitted by Section 6.1).
Debtor Relief Law ” shall mean the Bankruptcy Code and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, arrangement, readjustment, composition, liquidation, examination, controlled management, suspension of payments or similar debtor relief or debt adjustment laws of the United States, any other country or other applicable jurisdictions from time to time in effect.
Default ” shall mean any of the events specified in Section 7.1, whether or not any requirement for the giving of notice or the lapse of time, or both, or any other condition, has been satisfied.
Default Rate ” shall mean (a) when used with respect to the Loans or unpaid interest thereon, an interest rate equal to (i) the interest rate (including any Applicable Margin) otherwise applicable to such Loans plus (ii) 2.00% per annum, (b) when used with respect to Letter of Credit Fees, a rate equal to the Applicable Margin applicable to such Letter of Credit Fee plus 2.00% per annum, and (c) when used with respect to any other fee or amount due hereunder, a rate equal to the Applicable Margin applicable to Alternate Base Rate Loans plus 2.00% per annum.
Defaulting Lender ” shall mean, subject to Section 2.21(b), any Lender that, as reasonably determined by the Administrative Agent (with notice to the Company of such determination), (a) has failed to perform any of its funding obligations hereunder, including in respect of its Loans or participations in Letters of Credit or Swingline Loans, within three (3) Business Days of the date required to be funded by it hereunder unless such Lender is disputing its funding obligations in good faith, (b) has notified the Company or the Administrative Agent that it does not intend to comply with its funding obligations or has made a public statement to that effect with respect to its funding obligations hereunder or, except in connection with a good faith dispute, under other agreements in which it commits to extend credit, (c) has failed, within three (3) Business Days after request by the Administrative Agent, to confirm in a manner satisfactory to the Administrative Agent that it will comply with its funding obligations or (d) has, or has a direct or indirect


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parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal or foreign regulatory authority acting in such a capacity or (iii) become the subject of a Bail-In Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of (x) the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority or (y) in the case of a solvent Person, the precautionary appointment of an administrator, guardian, custodian or other similar official by a Governmental Authority under or based on the law of the country where such Person is subject to home jurisdiction supervision if applicable law requires that such appointment not be publicly disclosed in any such case, where such action does not result in or provide such Person with immunity from the jurisdiction of courts within the United States of America or from the enforcement of judgments or writs of attachment on its assets or permit such Person (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made by such Person.
Deposit Account Control Agreement ” shall mean an agreement, among a Credit Party, a depository institution, and the Administrative Agent, which agreement is in a form acceptable to the Administrative Agent and which provides the Administrative Agent with “control” (as such term is used in Article 9 of the UCC) over the deposit account(s) described therein.
Designated Obligations ” means all Obligations of the Credit Parties in respect of accrued and unpaid principal of and interest on the Loans (excluding the Swingline Loans and Additional Alternative Currency Loans) and all fees required to be paid under Section 2.5, in each case, whether or not the same shall at the time of any determination be due and payable under the terms of the Credit Documents.
Direction ” shall have the meaning set forth in Section 2.16(i)(ii)(A).
Disqualified Equity Interests ” shall mean any Equity Interest which, by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable), or upon the happening of any event, (a) matures (excluding any maturity as the result of an optional redemption by the issuer thereof) or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof, in whole or in part, on or prior to the date 180 days after the Maturity Date, (b) is convertible into or exchangeable (unless at the sole option of the issuer thereof) for (i) debt securities or (ii) any Equity Interests referred to in (a) above, in each case at any time on or prior to the date 180 days after the Maturity Date, or (c) contains any repurchase obligation which may come into effect prior to payment in full of all Obligations; provided , however , that any Equity Interests that would not constitute Disqualified Equity Interests but for provisions thereof giving holders thereof (or the holders of any security into or for which such Equity Interests is convertible, exchangeable or exercisable) the right to require the issuer thereof to redeem such Equity Interests upon the occurrence of a change in control or an asset sale occurring prior to the first anniversary of the Maturity Date shall not constitute Disqualified Equity Interests if such Equity Interests provide that the issuer thereof will not redeem any such Equity Interests pursuant to such provisions prior to the repayment in full of the Obligations.
Dollar Equivalent ” shall mean, at any time, (a) with respect to any amount denominated in Dollars, such amount and (b) with respect to any amount denominated in a Foreign Currency, the equivalent amount thereof in Dollars as reasonably determined by the Administrative Agent or the applicable Issuing Lender, as the case may be, at such time on the basis of the Spot Rate (as determined in respect of the most recent Revaluation Date) for the purchase of Dollars with such Foreign Currency.
Dollars ” and “ $ ” shall mean dollars in lawful currency of the United States of America.


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Domestic Lending Office ” shall mean, initially, the office of each Lender designated as such Lender’s Domestic Lending Office shown in such Lender’s Administrative Questionnaire; and thereafter, such other office of such Lender as such Lender may from time to time specify to the Administrative Agent and the Company as the office of such Lender at which Alternate Base Rate Loans of such Lender are to be made.
Domestic Subsidiary ” shall mean any Subsidiary that is organized and existing under the laws of the United States or any state or commonwealth thereof or under the laws of the District of Columbia.
EEA Financial Institution ” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clause (a) or (b) of this definition and is subject to consolidated supervision with its parent.
EEA Member Country ” means any member state of the European Union, Iceland, Liechtenstein and Norway.
EEA Resolution Authority ” means any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
Eligible Assignee ” shall mean (a) a Lender, (b) an Affiliate of a Lender, (c) an Approved Fund and (d) any other Person (other than a natural person) approved by (i) the Administrative Agent, (ii) in the case of any assignment of a Revolving Commitment, the Issuing Lenders and Swingline Lenders and (iii) unless an Event of Default has occurred and is continuing, the Company (each such approval not to be unreasonably withheld or delayed; provided that the Company shall be deemed to have approved such Person unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereof); provided that, notwithstanding the foregoing, “Eligible Assignee” shall not include (A) any Credit Party or any Affiliate or Subsidiary of any Credit Party or (B) any Defaulting Lender (or any of their Affiliates).
EMU ” shall mean the economic and monetary union as contemplated in the Treaty on European Union (Official Journal C 191, July 29, 1992), as amended from time to time.
EMU Legislation ” shall mean legislative measures of the European Council and/or other relevant bodies of the European Union (including, without limitation, European Council regulations) for the introduction of, changeover to or operation of a single or unified European currency (whether known as the Euro or otherwise), being in part the implementation of the third stage of EMU.
Environmental Laws ” shall mean any and all applicable foreign, federal, state, local or municipal laws, rules, orders, regulations, statutes, ordinances, codes, decrees or requirements of any Governmental Authority or other Requirement of Law (including common law) regulating, relating to or imposing liability or standards of conduct concerning protection of human health or the environment, as now or may at any time be in effect during the term of this Agreement.
Equity Interests ” shall mean (a) in the case of a corporation, capital stock, (b) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of capital stock, (c) in the case of a partnership, partnership interests (whether general, preferred


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or limited), (d) in the case of a limited liability company, membership interests and (e) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person, including, without limitation, options, warrants and any other “equity security” as defined in Rule 3a11-1 of the Exchange Act, excluding debt securities convertible or exchangeable into Equity Interests.
ERISA ” shall mean the Employee Retirement Income Security Act of 1974.
EU Bail-In Legislation Schedule ” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor Person), as in effect from time to time.
EURIBOR Market Index Rate ” means, for any date, the higher of (a) the rate determined by the European Money Markets Institute for one-month deposits in Euros as of 11:00 a.m. Brussels time, on such day, or if such day is not a Target Settlement Day, then the immediately preceding Target Settlement Day (as set forth by Reuters or any successor thereto or any other service selected by the Administrative Agent which has been nominated by the European Money Markets Institute as an authorized information vendor for the purpose of displaying such rates) (or if not so reported, then as determined by the Administrative Agent from another recognized source or interbank quotation) and (b) 0% (including for any Replacement Rate with respect thereto). Unless otherwise specified in any amendment to this Agreement entered into in accordance with Section 2.13(c), in the event that a Replacement Rate with respect to the EURIBOR Market Index Rate is implemented, then all references herein to the EURIBOR Market Index Rate shall be deemed references to such Replacement Rate.
EURIBOR Market Index Rate Loan ” shall mean Loans the rate of interest applicable to which is based on the EURIBOR Market Index Rate.
EURIBOR Market Index Rate Tranche ” shall mean the collective reference to EURIBOR Market Index Rate Loans advanced on the same day.
EURIBOR Rate ” shall mean, subject to the implementation of a Replacement Rate in accordance with Section 2.13(c), for any EURIBOR Rate Loan for any Interest Period therefor, the rate per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) determined by the European Money Markets Institute for deposits in Euros (for delivery on the first day of such Interest Period) with a term comparable to such Interest Period, determined as of approximately 11:00 a.m., Brussels time, on the second full Target Settlement Day preceding the first day of such Interest Period (as set forth by Reuters or any successor thereto or any other service selected by the Administrative Agent which has been nominated by the European Money Markets Institute as an authorized information vendor for the purpose of displaying such rates); provided , however , that (i) if no comparable term for an Interest Period is available, the EURIBOR Rate shall be determined using the weighted average of the offered rates for the two terms most nearly corresponding to such Interest Period and (ii) if the rate referenced above is not available, “EURIBOR Rate” shall mean, with respect to each day during each Interest Period pertaining to EURIBOR Rate Loans comprising part of the same Tranche, the rate per annum equal to the rate at which the Administrative Agent (or such other bank or banks as may be designated by the Administrative Agent in consultation with the Company) is offered deposits in Euros at approximately 11:00 a.m., Brussels time, two (2) Target Settlement Days prior to the first day of such Interest Period, for delivery on the first day of such Interest Period for the number of days comprised therein and in an amount comparable to its portion of the amount of such EURIBOR Rate Loan to be outstanding during such Interest Period (or such other amount as the Administrative Agent may reasonably determine). Notwithstanding the foregoing, (x) in no event shall the EURIBOR Rate (or any Replacement Rate with respect thereto) be less than 0.0% and (y) unless otherwise specified in any amendment to this Agreement entered into in accordance with Section 2.13(c), in the event that a Replacement Rate with


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respect to the EURIBOR Rate is implemented, then all references herein to the EURIBOR Rate shall be deemed references to such Replacement Rate.
EURIBOR Rate Loan ” shall mean Loans the rate of interest applicable to which is based on the EURIBOR Rate.
EURIBOR Tranche ” shall mean the collective reference to EURIBOR Rate Loans whose Interest Periods begin and end on the same day.
Euro ” and “ ” shall mean the single currency of Participating Member States of the European Union.
Eurocurrency Lending Office ” shall mean, initially, the office(s) of each Lender designated as such Lender’s Eurocurrency Lending Office in such Lender’s Administrative Questionnaire; and thereafter, such other office of such Lender as such Lender may from time to time specify to the Administrative Agent and the Company as the office of such Lender at which the Eurocurrency Loans of such Lender are to be made.
Eurocurrency Loan ” shall mean any EURIBOR Market Index Rate Loan, EURIBOR Rate Loan, LIBOR Market Index Rate Loan, or any LIBOR Rate Loan, as applicable.
Euro Unit ” shall mean the currency unit of the Euro.
Event of Default ” shall mean any of the events specified in Section 7.1; provided , however , that any requirement for the giving of notice or the lapse of time, or both, or any other condition, has been satisfied.
Exchange Act ” shall mean the Securities Exchange Act of 1934.
Excluded Swap Obligation ” shall mean, with respect to any Company Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the Guaranty of such Company Guarantor of, or the grant by such Company Guarantor of a security interest to secure, such Swap Obligation (or any Guaranty thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Company Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the Guaranty of such Company Guarantor or the grant of such security interest becomes effective with respect to such Swap Obligation. If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such Guaranty or security interest is or becomes illegal.
Excluded Taxes ” shall mean, with respect to the Administrative Agent, any Lender, any Issuing Lender or any other recipient of any payment to be made by or on account of any obligation of any Credit Party under any Credit Document, (a) any Taxes imposed on or measured by such recipient’s overall net income (however denominated), franchise Taxes imposed on such recipient in lieu of net income, and branch profits Taxes, in each case imposed by the jurisdiction (or any political subdivision thereof) under the laws of which such recipient is organized or in which its principal office is located, it is managed and controlled or has its seat of management, is engaged in a trade or business, or has a permanent establishment, office, fixed base or branch or similar connections or, in the case of any Lender, in which its applicable lending office is located (other than a jurisdiction in which Administrative Agent or such Lender, Issuing Lender or other recipient would not have been subject to such Tax but for having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Credit Document, or sold or assigned an interest


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in any Loan or Credit Document), (b) any U.S. federal withholding Tax imposed by a law in effect at the time a Foreign Lender (other than an assignee under Section 2.19) becomes a party hereto (or designates a new lending office), except to the extent that such Foreign Lender (or its assignor, if any) was entitled, at the time of the assignment (or designation of a new lending office), to receive additional amounts with respect to such withholding Tax pursuant to Section 2.16(a), (c) Taxes to the extent attributable to a Foreign Lender’s failure to comply with Section 2.16(f) and (d) any Taxes imposed on any “withholdable payment” payable to such recipient as a result of the failure of such recipient to satisfy the applicable requirements as set forth in FATCA.
Existing Company Letter of Credit ” shall mean each of the letters of credit outstanding under the Existing Credit Agreement and described by applicant, date of issuance, letter of credit number, amount, beneficiary and the date of expiry on Schedule 1.1(a).
Existing Credit Agreement ” shall mean that certain Amended and Restated Credit Agreement, dated as of June 23, 2015 (as amended on April 1, 2016, June 13, 2016 and December 4, 2017 and as further amended, amended and restated, supplemented or otherwise modified from time to time prior to the Restatement Effective Date) among the Company, the Subsidiaries of the Company from time to time party thereto as guarantors and subsidiary borrowers, the lenders from time to time party thereto and Wells Fargo, as administrative agent.
Existing Indebtedness Refinancing ” shall mean, collectively, (a) the repayment in full of all Loans outstanding, and termination of all Commitments, under (and, in each case, as defined in) the Existing Credit Agreement, together with the payment of all accrued interest, fees, premiums and other amounts due in respect thereof on the terms and subject to the conditions hereof, and (b) the repayment in full of all Indebtedness outstanding, and termination of revolving commitments, under the Existing Target Credit Agreement, together with the payment of all accrued interest, fees, premiums and other amounts due in respect thereof, and the termination of all guarantees thereunder and release of all security therefor.
Existing Letter of Credit ” shall mean each of the Existing Company Letters of Credit and the Existing Target Letters of Credit.
Existing Target Credit Agreement ” shall mean that certain Credit Agreement, dated as of December 18, 2015 (as amended on June 3, 2016 and November 2, 2017 and as further amended, amended and restated, supplemented or otherwise modified from time to time prior to the Restatement Effective Date), by and among, among others, the Acquired Company, the banks and other financial institutions or entities from time to time party thereto and Silicon Valley Bank, as administrative agent, swingline lender and issuing lender.
Existing Target Letter of Credit ” shall mean each of the letters of credit outstanding under the Existing Target Credit Agreement and described by applicant, date of issuance, letter of credit number, amount, beneficiary and the date of expiry on Schedule 1.1(b).
Exposed LOC Obligations shall have the meaning set forth in Section 2.21(a)(iii)(B).
Extension of Credit ” shall mean, as to any Lender, the making of a Loan by such Lender or the issuance, continuation or renewal of, or participation in, a Letter of Credit or Swingline Loan by such Lender.
Facility ” or “ Facilities ” shall mean the Term Loan Facility and/or the Revolving Facility, as applicable.


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FATCA ” shall mean: (a) Sections 1471 through 1474 of the Code in effect as of the Restatement Effective Date and any regulations with respect thereto or official interpretations thereof; (b) any treaty, law or regulation of any other jurisdiction, or relating to an intergovernmental agreement between the U.S. and any other jurisdiction, which (in either case) facilitates the implementation of any law or regulation referred to in clause (a) above; or (c) any agreement pursuant to the implementation of any treaty, law or regulation referred to in clause (a) or (b) above with the U.S. Internal Revenue Service, the U.S. government or any governmental or taxation authority in any other jurisdiction.
FCPA ” shall mean the Foreign Corrupt Practices Act, 15 U.S.C. §§ 78dd-1, et seq.
Federal Funds Effective Rate ” shall have the meaning set forth in the definition of “Alternate Base Rate”.
Fee Letter ” shall mean, collectively, (x) the amended and restated fee letter dated October 3, 2017, addressed to the Company from Wells Fargo, WF Investment Holdings, LLC, WFS, JPMorgan Chase Bank, N.A., Bank of the West, BNP Paribas, ING Bank N.V., Dublin Branch and U.S. Bank National Association (as further amended, restated, amended and restated or otherwise modified from time to time), (y) the administrative agent fee letter dated October 3, 2017, addressed to the Company from Wells Fargo, WF Investment Holdings, LLC and WFS (as amended, restated, amended and restated or otherwise modified from time to time) and (z) any other fee letter entered into between the Company or any of its Affiliates, on the one hand, and any of the Administrative Agent, Co-Documentation Agents, Syndication Agents, Arrangers or other arrangers or agents, on the other hand, in connection with the Transactions (in each case, as amended, restated, amended and restated or otherwise modified from time to time).
Financial Support Direction ” means a financial support direction issued by the Pensions Regulator under section 43 of the Pensions Act 2004 (UK).
Flood Insurance Laws ” means, collectively, (a) the National Flood Insurance Act of 1968 as now or hereafter in effect or any successor statute thereto, (b) the Flood Disaster Protection Act of 1973 as now or hereafter in effect or any successor statue thereto, (c) the National Flood Insurance Reform Act of 1994 as now or hereafter in effect or any successor statute thereto and (d) the Flood Insurance Reform Act of 2004 as now or hereafter in effect or any successor statute thereto.
Foreign Borrower ” shall mean any Foreign Subsidiary that becomes a Foreign Borrower pursuant to Section 2.23.
Foreign Borrower Guarantor ” shall mean, solely with respect to the Foreign Obligations of any Foreign Borrower, the Company, each Company Guarantor and each other Subsidiary of the Company (including any Foreign Parent of such Foreign Borrower) that (a) is required to provide a Guaranty pursuant to Section 2.23 in connection with the designation of such Foreign Borrower or (b) becomes a Guarantor of such Foreign Borrower’s Foreign Obligations pursuant to Section 5.9.
Foreign Borrower Request ” shall have the meaning set forth in Section 2.23(a).
Foreign Currencies ” shall mean (a) Euros, (b) British Pounds Sterling and (c) Alternative Currencies.
Foreign Currency Equivalent ” shall mean, at any time, with respect to any amount denominated in Dollars, the equivalent amount thereof in the applicable Foreign Currency as reasonably determined by the Administrative Agent or the applicable Issuing Lender, as the case may be, at such time on the basis of


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the Spot Rate (determined in respect of the most recent Revaluation Date) for the purchase of such Foreign Currency with Dollars.
Foreign Currency Sublimit ” shall mean $500,000,000. The Foreign Currency Sublimit is part of, and not in addition to, the Revolving Commitments. Any increase or reduction in the Revolving Commitments shall increase or reduce, as applicable, the Foreign Currency Sublimit on a dollar-for-dollar basis.
Foreign Lender ” shall mean any Lender or Issuing Lender, (a) with respect to any Borrower other than the Company, that is treated as foreign by the jurisdiction in which such Borrower is resident for tax purposes, and (b) with respect to the Company, that (i) is not a U.S. Person, or (ii) is a partnership or other entity treated as a partnership for U.S. federal income tax purposes that is a U.S. Person, but only to the extent the beneficial owners (including indirect partners if its direct partners are partnerships for U.S. federal income tax purposes that are U.S. Persons) are not U.S. Persons.
Foreign Obligations ” shall mean, collectively, (a) all of the obligations, Indebtedness and liabilities of each Foreign Borrower and Foreign Borrower Guarantor to the Lenders (including the Issuing Lenders and the Swingline Lenders) and the Administrative Agent, whenever arising, under this Agreement, the Notes or any of the other Credit Documents, including principal, interest, fees, costs, charges, expenses, professional fees, reimbursements, guaranty obligations, all sums chargeable to each Foreign Borrower and any Foreign Borrower Guarantor or for which any Foreign Borrower or any Foreign Borrower Guarantor is liable as an indemnitor and whether or not evidenced by a note or other instrument and indemnification obligations and any other amounts owing by a Foreign Borrower or Foreign Borrower Guarantor, in each case, under this Agreement, the Notes or any of the other Credit Documents (including, but not limited to, any interest accruing after the occurrence of a filing of a petition of bankruptcy under any Debtor Relief Law with respect to any Group Member, regardless of whether such interest is an allowed claim under any Debtor Relief Law), and (b) all obligations, Indebtedness and liabilities of any Foreign Subsidiary under each Hedging Agreement or Treasury Services Agreement entered into by such Foreign Subsidiary with any Bank Product Provider, including principal, interest, fees, costs, charges, expenses, professional fees, reimbursements, guaranty obligations, all sums chargeable to any Foreign Subsidiary or for which any Foreign Subsidiary is liable as an indemnitor and whether or not evidenced by a note or other instrument, indemnification obligations and other amounts, in each case, owing by such Foreign Subsidiary under any such Hedging Agreement or Treasury Services Agreement, and all amounts owing under any Foreign Parent Guaranty Agreement with respect to a Foreign Subsidiary’s Obligations under this Agreement, the Notes or any of the other Credit Documents, any Hedging Agreement or Treasury Services Agreement (including, but not limited to, any interest accruing after the occurrence of a filing of a petition of bankruptcy under any Debtor Relief Law with respect to any Group Member, regardless of whether such interest is an allowed claim under any Debtor Relief Law). Notwithstanding anything to the contrary contained in any Credit Document, no Foreign Borrower, in its capacity as a Foreign Borrower, will be liable for the Foreign Obligations of another Borrower or for any of the U.S. Obligations; provided that this provision shall not limit any Foreign Obligations of a Foreign Borrower, in its capacity as a Guarantor, with respect to the Foreign Obligations of any other Foreign Borrower.
Foreign Parent ” shall mean, with respect to any Foreign Subsidiary that is a Borrower or an Applicant Borrower, any other Foreign Subsidiary of which such Borrower or Applicant Borrower constitutes a Subsidiary.
Foreign Parent Guaranty Agreement ” shall mean a guaranty by a Foreign Parent of a Foreign Borrower’s Foreign Obligations hereunder, which shall be in substantially in the form of Exhibit Q (with such changes thereto as may be reasonably requested by the Administrative Agent to insure such guaranty


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will be enforceable under the laws applicable to such Foreign Parent) or other form reasonably acceptable to the Administrative Agent.
Foreign Parent Guaranty Joinder Agreement ” shall mean a supplement, executed by a Foreign Parent, to a Foreign Parent Guaranty Agreement, which shall include such provisions as may be reasonably requested by the Administrative Agent to insure such guaranty will be enforceable under the laws applicable to such Foreign Parent.
Foreign Pledge Agreement ” shall mean a pledge agreement in a form reasonably acceptable to the Administrative Agent and sufficient to perfect the Administrative Agent’s Lien on and security interest in the Equity Interests of a Material Foreign Subsidiary in the jurisdiction of organization or incorporation, as applicable, of such Material Foreign Subsidiary.
Foreign Subsidiary ” shall mean any Subsidiary that is not a Domestic Subsidiary.
Foreign Working Capital Obligations ” shall mean all obligations of any Foreign Subsidiary to a Bank Product Provider that are reasonably acceptable to the Administrative Agent (and which has, with the consent of the Company, appointed the Administrative Agent as its collateral agent in a manner reasonably acceptable to the Administrative Agent, including pursuant to a Foreign Working Capital Collateral Agency Agreement in the form attached hereto as Exhibit N ) that, in each case, is providing Foreign Working Capital Obligations to any Foreign Subsidiary which constitute obligations in respect of loans and lines of credit (extended in connection with bilateral facilities, bank guarantees, letters of credit or other commercial purposes), in each case, for working capital and general corporate purposes of such Foreign Subsidiary; provided that the aggregate outstanding principal amount of all Foreign Working Capital Obligations at any time outstanding (without duplication of principal obligations and guarantees) shall not exceed $30,000,000.
Fronting Exposure ” shall mean, at any time there is a Defaulting Lender, (a) with respect to any Issuing Lender, such Defaulting Lender’s Revolving Commitment Percentage of the outstanding LOC Obligations with respect to Letters of Credit issued by such Issuing Lender other than LOC Obligations as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof, (b) with respect to any Swingline Lender, such Defaulting Lender’s Revolving Commitment Percentage of outstanding Swingline Loans made by such Swingline Lender other than Swingline Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof and (c) with respect to any Additional Alternative Currency Lenders, such Defaulting Lender’s Revolving Commitment Percentage of outstanding Additional Alternative Currency Loans made by such Additional Alternative Currency Lender, other than Additional Alternative Currency Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof.
Fund ” shall mean any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its business.
GAAP ” shall mean generally accepted accounting principles in effect in the United States of America, subject , however , in the case of determination of compliance with the financial covenants set out in Section 6.13, to the provisions of Section 1.3.
German Borrowers ” shall mean (i) Allmess GmbH, a Germany limited liability company, registered with the commercial register of the local court ( Amtsgericht ) of Lübeck under HRB 233 OL, (ii) Itron Holding


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Germany GmbH, a Germany limited liability company, registered with the commercial register of the local court (Amtsgericht) of Mannheim under HRB 110522, (iii) Itron GmbH, a Germany limited liability company, registered with the commercial register of the local court (Amtsgericht) of Mannheim under HRB 106481, (iv) Itron Zähler & Systemtechnik GmbH, a Germany limited liability company, registered with the commercial register of the local court (Amtsgericht) of Hanover under HRB 100575 and (v) any other Foreign Subsidiary organized under the laws of the Federal Republic of Germany and designated as a Foreign Borrower pursuant to Section 2.23.
German Credit Party ” shall mean any Credit Party organized under the laws of the Federal Republic of Germany.
German Secured Party ” shall have the meaning set forth in Section 8.1.
Government Acts ” shall have the meaning set forth in Section 2.17(a).
Government Obligations ” shall have the meaning set forth in the definition of “Cash Equivalents.”
Governmental Real Property Disclosure Requirements ” shall mean any Environmental Law or other Requirement of Law requiring notification of the buyer, mortgagee or assignee of real property, or notification, registration or filing to or with any Governmental Authority, in connection with the sale, lease, mortgage, assignment or other transfer (including, with-out limitation, any transfer of control) of any real property, establishment or business or any matter of environmental concern.
Governmental Authority ” shall mean the government of the United States of America or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).
Group Member ” shall mean each of the Company and its Subsidiaries.
Guaranteed Obligations ” shall mean have the meaning set forth in Section 11.1.
Guarantor ” shall mean the Company Guarantors and the Foreign Borrower Guarantors.
Guaranty ” shall mean the guaranty of the U.S. Credit Parties set forth in Article XI and any other guaranty required to be provided pursuant to this Agreement (including, without limitation, any guaranty by a Foreign Parent required to be provided pursuant to Section 2.23 or Section 5.9 and any guaranty set forth in any Foreign Parent Guaranty Agreement).
Guaranty Obligations ” shall mean, with respect to any Person, without duplication, any obligations of such Person (other than endorsements in the ordinary course of business of negotiable instruments for deposit or collection) guaranteeing or intended to guarantee any Indebtedness of any other Person in any manner, whether direct or indirect, and including, without limitation, any obligation, whether or not contingent, (a) to purchase any such Indebtedness or any property constituting security therefor, (b) to advance or provide funds or other support for the payment or purchase of any such Indebtedness or to maintain working capital, solvency or other balance sheet condition of such other Person (including, without limitation, keep well agreements, maintenance agreements, comfort letters or similar agreements or arrangements) for the benefit of any holder of Indebtedness of such other Person, (c) to lease or purchase property, securities or services primarily for the purpose of assuring the holder of such Indebtedness against loss in respect thereof or (d) to otherwise assure or hold harmless the holder of such Indebtedness against loss in respect


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thereof. The amount of any Guaranty Obligation hereunder shall (subject to any limitations set forth therein) be deemed to be an amount equal to the outstanding principal amount of the Indebtedness in respect of which such Guaranty Obligation is made.
Hedging Agreements ” shall mean, with respect to any Person, any agreement entered into to protect such Person against fluctuations in interest rates, or currency or raw materials values, including, without limitation, any interest rate swap, cap or collar agreement or similar arrangement between such Person and one or more counterparties, any foreign currency exchange agreement, currency protection agreements, commodity purchase or option agreements or other interest or exchange rate hedging agreements.
Hedging Obligations ” shall mean, with respect to any Person, all obligations of such Person arising out of any Hedging Agreement.
Immaterial Subsidiary ” shall mean any Subsidiary that (a) did not, as of the last day of the fiscal quarter of the Company most recently ended for which financial statements have been delivered to the Administrative Agent pursuant to Section 5.1(a) or (b), have assets with a fair market value in excess of $25,000,000 or gross revenues over the most recently ended four-quarter period for which financial statements of the Company and its Subsidiaries have been delivered to the Administrative Agent pursuant to Section 5.1(a) or (b) in excess of $25,000,000 and (b) taken together with all Immaterial Subsidiaries as of the last day of the fiscal quarter of the Company most recently ended for which financial statements have been delivered to the Administrative Agent pursuant to Section 5.1(a) or (b), did not have assets with a fair market value in excess of $75,000,000 or gross revenues over the most recently ended four-quarter period for which financial statements of the Company and its Subsidiaries have been delivered to the Administrative Agent pursuant to Section 5.1(a) or (b) in excess of $75,000,000. Each Immaterial Subsidiary as of the Restatement Effective Date shall be set forth in Schedule 1.1(c) .
Impacted Lender ” shall mean, subject to Section 2.21(b) any Lender that, as determined by the Administrative Agent (with notice to the Company of such determination), has, or has a direct or indirect parent company that has, (a) become the subject of a proceeding under any Debtor Relief Law or (b) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal or foreign regulatory authority acting in such a capacity; provided that a Lender shall not be an Impacted Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority.
Incremental Increase Amount ” shall mean (a) $300,000,000 (excluding all incremental increases prior to the Restatement Effective Date under the Existing Credit Agreement) plus (b) any additional amount, so long as, in the case of this clause (b), after giving effect to such proposed Incremental Term Loan, Revolving Facility Increase and/or Additional Revolving Facility on a Pro Forma Basis, the Secured Net Leverage Ratio does not exceed 2.75 to 1.00; provided that (x) no cash or Cash Equivalents constituting proceeds of any proposed Incremental Term Loans or Loans made under any Revolving Facility Increase or Additional Revolving Facility may be applied to reduce Consolidated Funded Debt for purposes of calculating such Secured Net Leverage Ratio, and (y) such Secured Net Leverage Ratio shall be calculated as if any proposed Incremental Term Loans and the Revolving Facility (including any proposed Revolving Facility Increase and/or Additional Revolving Facility) had been outstanding and fully borrowed.
Incremental Term Loan ” shall have the meaning set forth in Section 2.22(a).


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Indebtedness ” of any Person shall mean, without duplication for purposes of calculating financial ratios, (a) all indebtedness for borrowed money of such Person, (b) all obligations of such Person for the deferred purchase price of property or services (other than trade payables not overdue by more than 60 days incurred in the ordinary course of such Person’s business), (c) all obligations of such Person evidenced by notes, bonds, debentures or other similar instruments, (d) all obligations of such Person created or arising under any conditional sale or other title retention agreement with respect to property acquired by such Person (even though the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such property), (e) all obligations of such Person as lessee under Capital Leases, (f) all obligations of such Person under acceptances, letters of credit or other similar arrangements or credit support facilities, (g) all obligations of such Person in respect of Disqualified Equity Interests, valued, in the case of Redeemable Preferred Interests, at the greater of its voluntary or involuntary liquidation preference plus accrued and unpaid dividends, (h) all net obligations of such Person in respect of Hedging Agreements, (i) all Guaranty Obligations and Off-Balance Sheet Obligations of such Person and (j) all indebtedness and other payment obligations referred to in clauses (a) through (i) above of another Person secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property (including, without limitation, accounts and contract rights) owned by such Person, even though such Person has not assumed or become liable for the payment of such indebtedness or other payment obligations. The Indebtedness of any Person shall include the Indebtedness of any other entity (including any partnership in which such Person is a general partner) to the extent such Person is liable therefor as a result of such Person’s ownership interest in or other relationship with such entity, except (other than in the case of general partner liability) to the extent that terms of such Indebtedness expressly provide that such Person is not liable therefor.
Indemnified Taxes ” shall mean Taxes, other than Excluded Taxes, including, without limitation, any amount withheld or deducted.
Indemnitee ” shall have the meaning set forth in Section 10.5(b).
Insolvency ” shall mean, with respect to any Multiemployer Plan, the condition that such Plan is insolvent within the meaning of such term as used in Section 4245 of ERISA.
Intercompany Debt ” shall have the meaning set forth in Section 10.19.
Intellectual Property Collateral ” shall have the meaning set forth in the Security Agreement.
Interest Coverage Ratio ” shall mean, as of any date of determination, the ratio of (a) Consolidated EBITDA for the four (4) consecutive quarters ending on such date, to (b) Consolidated Interest Expense for the four (4) consecutive quarters ending on such date; provided that, solely for purposes of determining the Interest Coverage Ratio, Consolidated Interest Expense shall be calculated on a Pro Forma Basis to give effect to any Indebtedness incurred, assumed or permanently repaid or extinguished during the relevant four quarter period in connection with any Permitted Acquisitions and permitted Asset Sales as if such incurrence, assumption, repayment or extinguishment had been effected on the first day of such period.
Interest Determination Date ” shall have the meaning specified in the definition of “Applicable Margin”.
Interest Payment Date ” shall mean (a) as to any Alternate Base Rate Loan or any LIBOR Market Index Rate Loan or EURIBOR Market Index Rate Loan, the last Business Day of each March, June, September and December and the Maturity Date, (b) as to any Eurocurrency Loan (other than any LIBOR Market Index Rate Loan or EURIBOR Market Index Rate Loan) having an Interest Period of three (3) months or less, the


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last day of such Interest Period and the Maturity Date, (c) as to any Eurocurrency Loan (other than any LIBOR Market Index Rate Loan or EURIBOR Market Index Rate Loan) having an Interest Period longer than three (3) months, (i) each three (3) month anniversary following the first day of such Interest Period, (ii) the last day of such Interest Period and (iii) the Maturity Date, and (d) as to any Loan which is the subject of a mandatory prepayment required pursuant to Section 2.7(b), the date on which such mandatory prepayment is due.
Interest Period ” shall mean, with respect to any Eurocurrency Loan (other than LIBOR Market Index Rate Loans or EURIBOR Market Index Rate Loans),
(a)    initially, the period commencing on the Borrowing Date or conversion date, as the case may be, and ending one, two, three or six months thereafter (or twelve months thereafter if consented to by all affected Lenders), as selected by the applicable Borrower in the Notice of Borrowing or Notice of Conversion/Continuation given with respect thereto; and

(b)    thereafter, each period commencing on the last day of the immediately preceding Interest Period and ending one, two, three or six months thereafter (or twelve months thereafter if consented to by all affected Lenders), as selected by the applicable Borrower by irrevocable notice to the Administrative Agent not less than three Business Days prior to the last day of the then current Interest Period with respect thereto; provided that the foregoing provisions are subject to the following:

(i)    if any Interest Period would otherwise end on a day that is not a Business Day, such Interest Period shall be extended to the next succeeding Business Day, unless the result of such extension would be to carry such Interest Period into another calendar month, in which event such Interest Period shall end on the immediately preceding Business Day;

(ii)    any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the relevant calendar month;

(iii)    if the applicable Borrower shall fail to give notice as provided above, such Borrower shall be deemed, (x) in the case of Eurocurrency Loans (other than LIBOR Market Index Rate Loans) denominated in Dollars, to have selected an Alternate Base Rate Loan to replace any affected LIBOR Rate Loans and (y) in the case of any Eurocurrency Loans (other than LIBOR Market Index Rate Loans or EURIBOR Market Index Rate Loans) denominated in Euros or British Pounds Sterling, an Interest Period of one month with respect to any affected Eurocurrency Loan, as the case may be;

(iv)    no Interest Period in respect of any Loan shall extend beyond the Maturity Date; and

(v)    no more than ten (10) LIBOR Market Index Rate Loans and LIBOR Rate Loans (in the aggregate) and ten (10) EURIBOR Market Index Rate Loans and EURIBOR Rate Loans (in aggregate) may be in effect at any time. For purposes hereof, Loans with different Interest Periods shall be considered as separate Loans, even if they shall begin on the same date and have the same duration, although borrowings, extensions and conversions


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may, in accordance with the provisions hereof, be combined at the end of existing Interest Periods to constitute a new Eurocurrency Loan with a single Interest Period.

Investment ” shall mean (a) the acquisition by any Person (whether for cash, property, services, assumption of Indebtedness, securities or otherwise) of Equity Interests, other ownership interests or other securities of any other Person or bonds, notes or debentures or all or substantially all of the assets of any Person (or a division or line of business of any Person), (b) any advance, loan or other extension of credit (including pursuant to a guaranty) to, any Person or (c) any other capital contribution to or investment in any Person, including, without limitation, any Guaranty Obligation (including any Guaranty Obligation for a letter of credit issued on behalf of such Person, but excluding any Letter of Credit issued pursuant to this Agreement) incurred for the benefit of such Person.
Issuing Lenders ” shall mean each U.S. Issuing Lender and each Multicurrency Issuing Lender, and “ Issuing Lender ” shall mean any of them.
Issuing Lender Fees ” shall have the meaning set forth in Section 2.5(c).
ITA ” shall mean the United Kingdom Income Tax Act 2007.
Itron Metering Solutions Luxembourg ” shall mean Itron Metering Solutions Luxembourg, a société à responsabilité limitée (private limited liability company), organized under the laws of Luxembourg, having its registered office at 12F, rue Guillaume Kroll, L-1882, Luxembourg, Grand-Duchy of Luxembourg and registered with the Luxembourg Register of Commerce and Companies under number B 151.472.
Joinder Agreement ” shall mean a Joinder Agreement in substantially the form of Exhibit B , executed and delivered by an Additional Credit Party in accordance with the provisions of Section 2.23 or Section 5.9.
Lender ” shall mean any of the several banks and other financial institutions as are, or may from time to time become parties to this Agreement (including any Issuing Lender or any Swingline Lender); provided that notwithstanding the foregoing, “Lender” shall not include any Credit Party or any of the Credit Parties’ Affiliates or Subsidiaries.
Lender Presentation ” shall mean the Lender Presentation relating to the Company and the Facilities, dated October 3, 2017, made available to the Lenders, and all other marketing materials made available to the Lenders prior to the Restatement Effective Date.
Lending Office ” means, as to any Lender, the office or offices of such Lender described as such in such Lender’s Administrative Questionnaire, or such other office or offices as a Lender may from time to time notify the Borrowers and the Administrative Agent.
Letter of Credit ” shall mean (a) any letter of credit issued by an Issuing Lender pursuant to the terms hereof, (b) any Existing Letter of Credit and (c) any Bank Guarantee.
Letter of Credit Facing Fee ” shall have the meaning set forth in Section 2.5(c).
Letter of Credit Fee ” shall have the meaning set forth in Section 2.5(b).
LIBOR ” shall mean, subject to the implementation of a Replacement Rate in accordance with Section 2.13(c):


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(i)      for any LIBOR Rate Loan for any Interest Period therefor, the rate per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) determined on the basis of the rate for deposits in Dollars, British Pounds Sterling or an Alternative Currency, as applicable, for a period equal to such Interest Period as published by the ICE Benchmark Administration Limited, or a comparable or successor quoting service approved by the Administrative Agent, at approximately 11:00 a.m. (London time) two (2) Business Days prior to the first day of such Interest Period for a term comparable to such Interest Period. If for any reason such rate is not available, then “LIBOR” with respect to such LIBOR Rate Loan shall mean the rate per annum determined by the Administrative Agent in accordance with its customary practices to be the arithmetic average of the rates per annum at which deposits in Dollars, British Pounds Sterling, or the applicable Alternative Currency would be offered by first class banks in the London interbank market to the Administrative Agent at approximately 11:00 a.m. London time, two (2) Business Days prior to the commencement of the applicable Interest Period for a period equal to the Interest Period selected, and

(ii)      for any Base Rate Loan, the rate per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) determined on the basis of the rate for deposits in Dollars for an Interest Period equal to one month (commencing on the date of determination of such interest rate) as published by the ICE Benchmark Administration Limited, or a comparable or successor quoting service approved by the Administrative Agent, at approximately 11:00 a.m. (London time) on such date of determination, or, if such date is not a Business Day, then the immediately preceding Business Day. If for any reason such rate is not available, then “LIBOR” with respect to such Base Rate Loan shall mean the rate per annum determined by the Administrative Agent in accordance with its customary practices to be the arithmetic average of the rates per annum at which deposits in Dollars would be offered by first class banks in the London interbank market to the Administrative Agent at approximately 11:00 a.m. London time, on such date of determination for a period equal to one month commencing on such date of determination.
 
Notwithstanding the foregoing, (x) in no event shall LIBOR (or any Replacement Rate with respect thereto) be less than 0.0%, and (y) unless otherwise specified in any amendment to this Agreement entered into in accordance with Section 2.13(c), in the event that a Replacement Rate with respect to LIBOR is implemented, then all references herein to LIBOR shall be deemed references to such Replacement Rate.

LIBOR Market Index Rate ” means, for any date, the higher of (a) the rate for one month deposits in Dollars, British Pounds Sterling or an Alternative Currency, as applicable, as published by the ICE Benchmark Administration Limited, or a comparable or successor quoting service approved by the Administrative Agent, as of 11:00 a.m. London time, on such day, or if such day is not a Business Day, then the immediately preceding Business Day (or if not so reported, then as determined by the Administrative Agent from another recognized source or interbank quotation) and (b) 0% (including for any Replacement Rate with respect thereto). Unless otherwise specified in any amendment to this Agreement entered into in accordance with Section 2.13(c), in the event that a Replacement Rate with respect to the LIBOR Market Index Rate is implemented, then all references herein to the LIBOR Market Index Rate shall be deemed references to such Replacement Rate.
LIBOR Market Index Rate Loan ” shall mean Loans the rate of interest applicable to which is based on the LIBOR Market Index Rate.


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LIBOR Market Index Rate Tranche ” shall mean the collective reference to LIBOR Market Index Rate Loans advanced on the same day.
LIBOR Rate ” shall mean a LIBOR rate per annum reasonably determined by the Administrative Agent in accordance with the definition of “LIBOR”.
LIBOR Rate Loan ” shall mean Loans the rate of interest applicable to which is based on the LIBOR Rate.
LIBOR Tranche ” shall mean the collective reference to LIBOR Rate Loans whose Interest Periods begin and end on the same day.
Lien ” shall mean any mortgage, pledge, hypothecation, assignment, transfer, encumbrance, lien (statutory or other), charge or other security interest or any other security agreement of any kind or nature whatsoever (including, without limitation, (a) any conditional sale or other title retention agreement and any Capital Lease having substantially the same economic effect as any of the foregoing and (b) the filing of, or the agreement to give, any UCC financing statement).
Limited Condition Acquisition ” means any Acquisition that (a) is not prohibited hereunder, and (b) is not conditioned on the availability of, or on obtaining, third party financing.
Loan ” shall mean the Term Loan, a Revolving Loan (including any Revolving Loans made pursuant to any Additional Revolving Facility), a Swingline Loan, an Additional Alternative Currency Loan and/or an Incremental Term Loan (if any), as appropriate.
LOC Commitment ” shall mean the commitment of an Issuing Lender to issue Letters of Credit and with respect to each Revolving Lender, the commitment of such Revolving Lender to purchase Participation Interests in the Letters of Credit up to such Lender’s LOC Commitment, as such amount may be reduced from time to time in accordance with the provisions hereof or increased in connection with assignments made in accordance with the terms hereof. Each Lender’s LOC Commitment as of the Restatement Effective Date is set forth on Schedule 2.1 hereto.
LOC Committed Amount ” shall have the meaning set forth in Section 2.3(a).
LOC Documents ” shall mean, with respect to each Letter of Credit, such Letter of Credit, any amendments thereto, any documents delivered in connection therewith, any application therefor, and any agreements, instruments, guarantees or other documents (whether general in application or applicable only to such Letter of Credit) governing or providing for (a) the rights and obligations of the parties concerned or (b) any collateral for such obligations.
LOC Obligations ” shall mean, at any time, the sum of (a) the maximum amount which is, or at any time thereafter may become, available to be drawn under Letters of Credit then outstanding, assuming compliance with all requirements for drawings referred to in such Letters of Credit plus (b) the aggregate amount of all drawings under Letters of Credit honored by any Issuing Lender but not theretofore reimbursed.
LOC Reserve Account ” shall have the meaning set forth in Section 9.2(b).
Luxembourg Borrowers ” shall mean (i) Itron Metering Solutions Luxembourg, (ii) Itron Global, a société à responsabilité limitée (private limited liability company), organized under the laws of Luxembourg, having its registered office at 12F rue Guillaume Kroll, L-1882, Luxembourg, Grand-Duchy of Luxembourg and registered with the Luxembourg Register of Commerce and Companies under number B 128.022 and


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(iii) any other Foreign Subsidiary incorporated under the laws of the Luxembourg and designated as a Foreign Borrower pursuant to Section 2.23.
Luxembourg Credit Party ” shall mean any Credit Party that has its seat in Luxembourg.
Mandatory LOC Borrowing ” shall have the meaning set forth in Section 2.3(e).
Mandatory Swingline Borrowing ” shall have the meaning set forth in Section 2.4(b)(ii).
Material Adverse Effect ” shall mean a material adverse effect on (a) the business, condition (financial or otherwise), operations, performance, properties or prospects of the Group Members, taken as a whole, (b) the legality, validity, binding effect or enforceability against any Credit Party (other than an Immaterial Subsidiary) of any Credit Document to which it is a party or (c) the ability of any Credit Party (other than an Immaterial Subsidiary) to perform its Obligations under any Credit Document to which it is or is to be a party. For purposes of clarification, the incurrence of Indebtedness by the Company and/or its Subsidiaries in compliance with this Agreement shall not, in and of itself, be deemed to be a Material Adverse Effect.
Material Contract ” shall mean, with respect to the Company or any of its Subsidiaries, each contract to which such Person is a party involving aggregate consideration payable to or by such Person in excess of 10% of Consolidated revenues of the Company and its Subsidiaries determined on a Pro Forma Basis for the four fiscal quarter period ended September 30, 2017.
Material Foreign Subsidiary shall mean a first-tier Foreign Subsidiary, that, as of the last day of the fiscal quarter of the Company most recently ended for which financial statements have been delivered to the Administrative Agent pursuant to Section 5.1(a) or (b), had assets with a fair market value in excess of $25,000,000, or gross revenues in excess of $25,000,000 for the most recently ended four fiscal quarter period for which financial statements have been delivered to the Administrative Agent pursuant to Section 5.1(a) or (b).
Material Indebtedness ” shall mean Indebtedness (other than the Loans, the Letters of Credit and the Guarantees under the Credit Documents) of any one or more of the Credit Parties and their Subsidiaries in an aggregate principal amount outstanding of $50,000,000 or more. For purposes of determining Material Indebtedness, the “principal amount” of the obligations of any Credit Party or any Subsidiary in respect of any Hedging Agreement at any time shall be the Termination Value thereof.
Material Real Property ” shall have the meaning set forth in Section 5.11(c).
Materials of Environmental Concern ” shall mean any gasoline or petroleum (including crude oil or any extraction thereof) or petroleum products or any hazardous or toxic substances, materials or wastes, defined or regulated as such in or under any Environmental Law, including, without limitation, asbestos, perchlorate, polychlorinated biphenyls and urea-formaldehyde insulation.
Maturity Date ” shall mean the date that is five years following the Restatement Effective Date; provided , however , if such date is not a Business Day, the Maturity Date shall be the next preceding Business Day.
Moody’s ” shall mean Moody’s Investors Service, Inc., or any successor thereto.
Mortgage ” shall mean an agreement, including, but not limited to, a mortgage, deed of trust or any other document, creating and evidencing a first Lien (subject only to the Liens permitted thereunder) in favor


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of the Administrative Agent on each Additional Real Property, which shall be in substantially in the form of Exhibit P or other form reasonably acceptable to the Administrative Agent, with such schedules and including such provisions as shall be necessary to conform such document to applicable local or foreign law or as shall be customary under local or foreign law.
Multicurrency Issuing Lender ” shall mean (a) (i) Wells Fargo, (ii) JPMorgan Chase Bank, N.A., (iii) J.P. Morgan Europe Limited, (iv) BNP Paribas, (v) Silicon Valley Bank or (vi) such other Lender as determined by the Company and approved by the Administrative Agent (which approval shall not be unreasonably withheld), as applicable, and (b) any successor Multicurrency Issuing Lender hereunder.
Multicurrency Swingline Committed Amount ” has the meaning set forth in Section 2.4(a). The Multicurrency Swingline Committed Amount is part of, and not in addition to, the Revolving Commitments.
Multicurrency Swingline Lender ” shall mean (a) (i) JPMorgan Chase Bank, N.A., (ii) J.P. Morgan Securities plc or (iii) such other Lender as determined by the Company and approved by the Administrative Agent (which approval shall not be unreasonably withheld) that agrees to be a Multicurrency Swingline Lender, and (b) any successor Multicurrency Swingline Lender hereunder.
Multiemployer Plan ” shall mean a Plan that is a multiemployer plan as defined in Section 4001(a)(3) of ERISA.
National Currency Unit ” shall mean a fraction or multiple of one Euro Unit expressed in units of the former national currency of a Participating Member State.
Net Cash Proceeds ” means:
(a)    in the case of any Asset Sale permitted by Section 6.4(b), the aggregate amount of all cash and cash equivalents (including any cash and Cash Equivalents received by way of deferred payment of principal pursuant to a note or otherwise, but only as and when received) received by any Credit Party directly or indirectly in connection with such Asset Sale, net (without duplication) of (A) the amount of all reasonable fees and expenses and transaction costs paid by or on behalf of any Credit Party in connection with such Asset Sale (including, without limitation, any underwriting, brokerage or other customary selling commissions and legal, advisory and other fees and expenses, including survey, title and recording expenses, transfer taxes and expenses incurred for preparing such assets for sale, associated therewith); (B) any Taxes paid or estimated in good faith to be payable by or on behalf of Company or any Subsidiary as a result of such Asset Sale (after application of all available credits, net operating losses and other offsets); (C) any repayments by or on behalf of any Group Member of Indebtedness (other than the Obligations) to the extent that such Indebtedness is secured by a Permitted Lien on the subject property, which Permitted Lien is required to be released as a condition to the purchase or sale of such property; (D) amounts required to be paid to any person (other than any Group Member) owning a beneficial interest in the subject property; and (E) amounts reserved, in accordance with GAAP, against any liabilities associated with such Asset Sale and retained by the Company after such Asset Sale and related thereto, including pension and other post-employment benefit liabilities, purchase price adjustments, liabilities related to environmental matters and liabilities under any indemnification obligations associated with such Asset Sale, all as reflected in an certificate of a Responsible Officer of the Company delivered to Administrative Agent;

(b)    in the case of any Casualty Event, the aggregate amount of cash (and cash equivalents) proceeds of insurance, condemnation awards and other compensation (excluding


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proceeds constituting business interruption insurance or other similar compensation for loss of revenue) received by the person whose property was subject to such Casualty Event in respect of such Casualty Event net of (A) fees and expenses incurred by or on behalf of any Group Member in connection with recovery thereof, (B) repayments of Indebtedness (other than the Obligations hereunder) to the extent that such Indebtedness is secured by a Permitted Lien on the subject property, which Permitted Lien is required to be released in connection with such Casualty Event, and (C) any Taxes paid or payable by or on behalf of Company or any Subsidiary in respect of the amount so recovered (after application of all available credits, net operating losses and other offsets) and amounts required to be paid to any person (other than any Company or any Subsidiary) owning a beneficial interest in the subject Property; and

(c)    in the case of any Debt Issuance, the aggregate amount of all cash and cash equivalents received in respect thereof by the person consummating such Debt Issuance in respect thereof net of all investment banking fees, discounts and commissions, legal fees, consulting fees, accountants’ fees, underwriting discounts and commissions and other fees and expenses actually incurred in connection therewith.

Non-Defaulting Lender ” shall mean, at any time, each Lender that is not a Defaulting Lender at such time.
Note ” or “ Notes ” shall mean the Term Loan Notes, the Revolving Loan Notes and/or the Swingline Loan Notes, collectively, separately or individually, as appropriate.
Notice of Borrowing ” shall mean a request for (a) a Term Loan borrowing pursuant to Section 2.2(a) or any borrowing of Incremental Term Loans, (b) a Revolving Loan borrowing pursuant to Section 2.1(b)(i) or (c) a Swingline Loan borrowing pursuant to Section 2.4(b)(i), as applicable, in substantially the form of Exhibit C attached hereto.
Notice of Conversion/Continuation ” shall mean the written notice of conversion of a Eurocurrency Loan to an Alternate Base Rate Loan or an Alternate Base Rate Loan to a Eurocurrency Loan, or continuation of a Eurocurrency Loan, in each case substantially in the form of Exhibit D .
Obligations ” shall mean the U.S. Obligations and the Foreign Obligations.
OFAC ” shall mean the U.S. Department of the Treasury’s Office of Foreign Assets Control.
Off-Balance Sheet Obligation ” means, with respect to any Person, any obligation of such Person under a synthetic lease, tax retention operating lease, off-balance sheet loan or similar off-balance sheet financing classified as an operating lease in accordance with GAAP, if such obligations would give rise to a claim against such Person in a proceeding referred to in Section 7.1(e).
Original Closing Date ” means August 8, 2011.
Original Effective Date ” means August 5, 2011.
Other Parties ” has the meaning assigned to such term in Section 11.7(c).
Other Taxes ” shall mean all present or future stamp, court or documentary Taxes and any other excise, property, intangible, recording, filing or similar Taxes which arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Credit Document.


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Overnight LIBOR Rate ” on any date shall mean the offered quotation to first-class banks in the London interbank market by the applicable Multicurrency Swingline Lender for the applicable Foreign Currency, as the case may be, of overnight deposits of amounts in immediately available funds comparable to the outstanding principal amount of the Multicurrency Swingline Loan denominated in such Foreign Currency of the applicable Multicurrency Swingline Lender as of 11:00 a.m. (London time) on such date; provided that, in the event Administrative Agent has made any determination pursuant to Section 2.14 in respect of the Multicurrency Swingline Loans denominated in such Foreign Currency, or in the circumstances described in Section 2.14 in respect of the Multicurrency Swingline Loan, the Overnight LIBOR Rate determined pursuant to this definition shall instead be the rate determined by the applicable Multicurrency Swingline Lender as the all-in-cost of funds for such applicable Multicurrency Swingline Lender to fund such Multicurrency Swingline Loan, in each case, for LIBOR Rate Loans plus , the Applicable Margin. Notwithstanding the foregoing, in no event shall the Overnight LIBOR Rate be less than 0.0%.
Participating Member State ” shall mean each country so described in any EMU Legislation.
Participant ” has the meaning assigned to such term in Section 10.6(d).
Participation Interest ” shall mean a participation interest purchased (or required to be purchased following demand or the occurrence of a specified event) by a Revolving Lender in LOC Obligations as provided in Section 2.3(c), in Swingline Loans as provided in Section 2.4 and in Additional Alternative Currency Loans as provided in Section 1.7.
Patriot Act ” shall mean the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001 (Title III of Pub. L. No. 107-56 (signed into law October 26, 2001)).
Payment Event of Default ” shall mean an Event of Default specified in Section 7.1(a).
PBGC ” shall mean the Pension Benefit Guaranty Corporation established pursuant to Subtitle A of Title IV of ERISA.
Perfection Certificate ” shall mean the Perfection Certificate, dated as of the Restatement Effective Date (which shall be substantially in the form of Exhibit J-1 ).
Perfection Certificate Supplement ” shall mean each supplement to the Perfection Certificate, delivered pursuant to the terms of this Agreement (which shall be substantially in the form of Exhibit J-2 ).
Permitted Acquisition ” shall mean an Acquisition, in each case so long as:

(i)    no Default or Event of Default shall then exist or would exist after giving effect thereto;

(ii)    (A) immediately after giving effect to such purchase or other acquisition, (x) the Group Members shall be in compliance with all of the covenants set forth in Section 6.13 on a Pro Forma Basis, and (y) the Total Net Leverage Ratio calculated on a Pro Forma Basis shall be less than or equal to the then-applicable maximum Total Net Leverage Ratio under Section 6.13(a) minus 0.25 to 1.00, and (B) with respect to any such purchase or other acquisition or series of related purchases or acquisitions, the total cash and noncash consideration (excluding Equity Interests of the Company) paid by or on behalf of the Group Members for which exceeds $150,000,000, prior to the consummation of such


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purchase or acquisition, the Administrative Agent shall have received a certificate from a Responsible Officer of the Company that the conditions in subclause (A) hereof have been met;

(iii)    the Administrative Agent shall have received, with respect to any such purchase or other acquisition or series of related purchases or acquisitions, the total cash and noncash consideration (excluding Equity Interests of the Company) paid by or on behalf of the Group Members for which exceeds $150,000,000, at least five (5) Business Days prior to the consummation of such purchase or acquisition (1) a description of each Person so purchased or acquired and the material terms of such acquisition and (2) a copy of summary financial information and, to the extent available, audited financial statements of each Person so purchased or acquired for the quarter and year most recently ended;

(iv)    such acquisition shall not be a “hostile” acquisition and shall have been approved by the Board of Directors (or equivalent) and/or shareholders (or equivalent) of the applicable Credit Party and the Target; and

(v)    the Company shall have delivered to the Administrative Agent, on behalf of the Secured Parties, prior to the date on which any such purchase or other acquisition for which the total cash and noncash consideration (excluding Equity Interests of the Company) paid by or on behalf of the Company and its Subsidiaries exceeds $150,000,000, a certificate executed by a Responsible Officer, certifying that all of the requirements set forth in this definition to be satisfied by the consummation date have been satisfied or will be satisfied on or prior to the consummation of such purchase or other acquisition.

Permitted Investments ” shall have the meaning set forth in Section 6.5.
Permitted Refinancing ” shall mean, with respect to any Person, any refinancing, refunding, renewal, replacement or extension of any Indebtedness of such Person; provided that (a) the principal amount (or accreted value, if applicable) thereof does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness so refinanced, refunded, renewed, replaced or extended except by an amount equal to unpaid accrued interest and premium (including tender premiums) thereon plus other reasonable and customary fees and expenses (including upfront fees and original issue discount) incurred in connection with such refinancing, refunding, renewal, replacement or extension, (b) the Indebtedness resulting from such refinancing, refunding, renewal, replacement or extension has a final maturity date equal to or later than the final maturity date of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Indebtedness being refinanced, refunded, renewed, replaced or extended, (c) at the time thereof, no Default shall have occurred and be continuing, and (d) (i) to the extent such Indebtedness being refinanced, refunded, renewed, replaced or extended is subordinated in right of payment to the Obligations, the Indebtedness resulting from such refinancing, refunding, renewal, replacement or extension is subordinated in right of payment to the Obligations on terms, taken as a whole, at least as favorable to the Lenders as those contained in the documentation governing the Indebtedness being refinanced, refunded, renewed, replaced or extended, (ii) the other terms and conditions (excluding as to subordination, pricing, premiums and optional prepayment or optional redemption provisions) of any such refinanced, refunded, renewed, replaced or extended Indebtedness, taken as a whole, are not materially less favorable to the Credit Parties or the Lenders than the terms and conditions of the Indebtedness being refinanced, refunded, renewed, replaced or extended, taken as a whole ( provided that a certificate of a Responsible Officer delivered to the Administrative Agent at least five (5) Business Days prior to the incurrence of such Indebtedness, together with a reasonably detailed description of the material terms and


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conditions of such Indebtedness or drafts of the documentation relating thereto, stating that the Company has determined in good faith that such terms and conditions satisfy the foregoing requirement shall be prima facie evidence that such terms and conditions satisfy the foregoing requirement), and (iii) the obligors (including any guarantors) in respect of the Indebtedness resulting from such refinancing, refunding, renewal, replacement or extension shall be the same as the obligors (including any guarantors) of the Indebtedness being refinanced, refunded, renewed, replaced or extended.
Permitted Unsecured Indebtedness ” shall mean unsecured senior debt and unsecured subordinated debt of the Company or any Foreign Subsidiary (a) that is not scheduled to mature prior to the date that is six (6) months after the Maturity Date in effect hereunder upon the incurrence thereof; (b) that does not mature or have scheduled amortization payments of principal or payments of principal and is not subject to mandatory redemption, repurchase, prepayment or sinking fund obligation (other than offers to purchase upon a change of control or asset sale that are market on the date of the incurrence of such Permitted Unsecured Indebtedness) earlier than the date that is six (6) months after the Maturity Date in effect hereunder upon the incurrence thereof; (c) that has representations and warranties, covenants, events of default and other terms that are no more restrictive in any material respect, taken as a whole, than those in this Agreement and (d) that does not require compliance with any financial maintenance covenants.
Person ” or “ person ” shall mean any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.
Plan ” shall mean, as of any date of determination, any employee benefit plan which is covered by Title IV of ERISA and in respect of which any Credit Party or a Commonly Controlled Entity is (or, if such plan were terminated at such time, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.
Preferred Interests ” shall mean, with respect to any Person, Equity Interests issued by such Person that are entitled to a preference or priority over any other Equity Interests issued by such Person upon any distribution of such Person’s property and assets, whether by dividend or upon liquidation.
Proposed Currency ” shall have the meaning set forth in Section 1.7(a).
Prime Rate ” shall have the meaning set forth in the definition of Alternate Base Rate.
Pro Forma Basis ” shall mean, (a) with respect to a Permitted Acquisition or Investment permitted pursuant to Section 6.5(c), 6.5(m) or 6.5(n) and for any other purpose relating to a Permitted Acquisition or Investment permitted pursuant to Section 6.5(c), 6.5(m) or 6.5(n), pro forma on the basis that (i) any Indebtedness incurred or assumed in connection with such Permitted Acquisition or such Investment was incurred or assumed on the first day of the applicable period, and any Indebtedness repaid in connection with such Permitted Acquisition or such Investment was repaid on the first day of the applicable period, (ii) if such Indebtedness incurred or assumed bears a floating interest rate, such interest shall be calculated over the pro forma period at the rate in effect on the date of such Permitted Acquisition or such Investment and (iii) all income and expense associated with the assets or entity acquired in connection with such Permitted Acquisition or such Investment (other than the fees, costs and expenses associated with the consummation of such Permitted Acquisition or such Investment) for the most recently ended four fiscal quarter period for which such income and expense amounts are available shall be treated as being earned or incurred by Company over the applicable period on a pro forma basis, (b) with respect to an Asset Sale or any sale or other disposition pursuant to Section 6.4(b)(iv), pro forma on the basis that (i) any Indebtedness prepaid out of the proceeds of such Asset Sale or disposition shall be deemed to have been prepaid as of the first day of the applicable period, and (ii) all income and expense associated with the assets or entity disposed of in


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connection with such Asset Sale or disposition shall be deemed to have been eliminated as of the first day of the applicable period and (c) with respect to any purpose relating to an incurrence, assumption or prepayment of Indebtedness or the payment of any Restricted Payment, pro forma on the basis that (i) such Indebtedness was incurred, assumed or prepaid or such Restricted Payment was incurred or paid on the first day of the applicable period (and if any such incurred or assumed Indebtedness was utilized to refinance other Indebtedness, that such other Indebtedness was repaid on the first day of the applicable period), and (ii) if such incurred or assumed Indebtedness bears a floating interest rate, such interest shall be calculated over the pro forma period at the rate in effect on the date of the incurrence of such Indebtedness.
Properties ” shall have the meaning set forth in Section 3.10(a).
Purchase Money Obligation ” shall mean, for any person, the obligations of such person in respect of Indebtedness (including Capital Leases) incurred for the purpose of financing all or any part of the purchase price of any property (including Equity Interests of any person) or the cost of installation, construction or improvement of any property; provided , however , that (i) such Indebtedness is incurred within one (1) year after such acquisition, installation, construction or improvement of such property by such person and (ii) the amount of such Indebtedness does not exceed 100% of the cost of such acquisition, installation, construction or improvement, as the case may be.
Qualified ECP Guarantor ” shall mean, in respect of any Swap Obligation, each U.S. Credit Party that has total assets exceeding $10,000,000 at the time the relevant Guaranty or grant of the relevant security interest becomes effective with respect to such Swap Obligation or such other person as constitutes an “eligible contract participant” under the Commodity Exchange Act or any regulations promulgated thereunder and can cause another person to qualify as an “eligible contract participant” at such time by entering into a keepwell under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.
Qualified Equity Interests ” shall mean, with respect to any Person, such Equity Interests of such Person that are not Disqualified Equity Interests.
Qualifying Lender ” means, with respect to a Borrower incorporated in the U.K.:
(a)    a Lender which is beneficially entitled to interest payable to that Lender in respect of an advance under a Credit Document and is:

(i)    a Lender: (A) which is a bank (as defined for the purpose of section 879 of the ITA) making an advance under a Credit Document; or (B) in respect of an advance made under a Credit Document by a person that was a bank (as defined for the purpose of section 879 of the ITA) at the time that that advance was made, in each case, which is within the charge to U.K. corporation tax as respects any payments of interest made in respect of that advance;

(ii)    a Lender which is: (A) a company resident in the U.K. for U.K. tax purposes; or (B) a partnership each member of which is (x) a company so resident in the U.K., (y) a company not so resident in the U.K. which carries on a trade in the U.K. through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of the CTA) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of the CTA or (z) a company not so resident in the U.K. which carries on a trade in the U.K. through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (within the meaning of section 19 of the CTA) of that company; or


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(iii)    a Treaty Lender; or

(b)    a building society (as defined for the purposes of section 880 of the ITA) making an advance under a Credit Document.

RCS ” shall mean Registre de Commerce et des Sociétés .
Real Property ” shall mean, collectively, all right, title and interest (including any leasehold, mineral or other estate) in and to any and all parcels of or interests in real property owned, leased or operated by any person, whether by lease, license or other means, together with, in each case, all easements, hereditaments and appurtenances relating thereto, all improvements and appurtenant fixtures and equipment, all general intangibles and contract rights and other property and rights incidental to the ownership, lease or operation thereof.
Recipient ” shall have the meaning set forth in Section 2.16(b)(iii).
Redeemable ” shall mean, with respect to any Equity Interest, any Indebtedness or any other right or obligation, any such Equity Interest, Indebtedness, right or obligation that (a) the issuer has undertaken to redeem at a fixed or determinable date or dates, whether by operation of a sinking fund or otherwise, or upon the occurrence of a condition not solely within the control of the issuer or (b) is redeemable at the option of the holder.
Register ” shall have the meaning set forth in Section 10.6(c).
Reimbursement Obligation ” shall mean the obligation of the applicable Borrower to reimburse the applicable Issuing Lender pursuant to Section 2.3(d) for amounts drawn under Letters of Credit.
Related Parties ” shall mean, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees and advisors of such Person and of such Person’s Affiliates.
Reportable Event ” shall mean any of the events set forth in Section 4043(c) of ERISA, other than those events as to which the thirty-day notice period is waived under PBGC Reg. §4043 or otherwise.
Required Lenders ” shall mean, as of any date of determination, Lenders holding at least a majority of (a) prior to the termination of the Revolving Commitments, the outstanding Revolving Commitments, unused Term Loan Commitments and Term Loans or (b) if the Revolving Commitments have been terminated, the unused Term Loan Commitments and the outstanding Loans and Participation Interests; provided , however , that if any Lender shall be a Defaulting Lender at such time, then there shall be excluded from the determination of Required Lenders, the Loans and Participation Interests owing to such Defaulting Lender and such Defaulting Lender’s Commitments.
Requirement of Law ” shall mean, as to any Person, (a) the articles or certificate of incorporation, by-laws or other organizational or governing documents of such Person, and (b) all international, foreign, Federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes, executive orders, and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority (in each case whether or not having the force of law); in each


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case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.
Responsible Officer ” shall mean, for any Credit Party, the chief executive officer, president, chief financial officer, treasurer or other similar officer of such Credit Party (or other officer duly authorized by a Credit Party to act with respect to the Credit Documents on behalf of such Credit Party) and, as to any document delivered on the Restatement Effective Date referred to in Section 4.1(b), the secretary of such Credit Party.
Restatement Effective Date ” shall mean the date as of which all the conditions set forth or referred to in Section 4.1 hereof shall have been satisfied or waived.
Restatement Effective Date Acquisition ” shall have the meaning set forth in the definition of "Transactions".
Restricted Payment ” shall mean (a) any dividend or other distribution, direct or indirect, on account of any Equity Interests of any Group Member, now or hereafter outstanding, (b) any redemption, retirement, sinking fund payment or similar payment, purchase or other acquisition for value, direct or indirect, of any Equity Interests of any Group Member, now or hereafter outstanding or (c) any payment made to retire, or to obtain the surrender of, any outstanding warrants, options or other rights to acquire shares of any Equity Interests of any Group Member, now or hereafter outstanding.
Restructure ” shall mean the restructuring of certain components of the Company’s business in the manner disclosed in writing by the Company to the Lenders prior to the Restatement Effective Date.
Revaluation Date ” shall mean each of the following: (a) each date a Loan is made pursuant to this Agreement, a Commitment is made or increased pursuant to Section 2.22 or a Letter of Credit is issued, amended or extended pursuant to Section 2.3; (b) each date a Loan is converted to or continued as a Eurocurrency Loan pursuant to the terms of this Agreement; (c) each date a Revolving Loan is made to reimburse a Swingline Loan or drawing under a Letter of Credit or a Participation Interest is required to be purchased in an outstanding Swingline Loan or outstanding LOC Obligation or outstanding Additional Alternative Currency Loan pursuant to the terms of this Agreement; (d) the last Business Day of each calendar month; and (e) such additional dates as the Administrative Agent or the Required Lenders shall reasonably specify.
Revolving Commitment ” shall mean, with respect to each Revolving Lender, the Commitment of such Revolving Lender to make Revolving Loans in an aggregate principal amount at any time outstanding up to such Lender’s Revolving Commitment Percentage of the Revolving Committed Amount. Each Lender’s Revolving Commitment as of the Restatement Effective Date is set forth on Schedule 2.1 hereto. For the avoidance of doubt, each Lender’s Revolving Commitment includes such Lender’s Commitment, if any, under any Revolving Facility Increase and any Additional Revolving Facility.
Revolving Commitment Percentage ” shall mean, with respect to each Revolving Lender, the percentage obtained by dividing the amount of its Revolving Commitment by the aggregate amount of the Revolving Commitments of all Lenders. If the Revolving Commitments have terminated or expired, the Revolving Commitment Percentage shall be determined based on the outstanding Revolving Loans and Participation Interests. Each Lender’s Revolving Commitment Percentage as of the Restatement Effective Date is set forth on Schedule 2.1 hereto.
Revolving Committed Amount ” shall have the meaning set forth in Section 2.1(a).


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Revolving Facility ” shall have the meaning set forth in Section 2.1(a).
Revolving Facility Increase ” shall have the meaning set forth in Section 2.22(a).
Revolving Lender ” shall mean, as of any date of determination, a Lender holding a Revolving Commitment, a Revolving Loan or a Participation Interest on such date.
Revolving Loan ” shall have the meaning set forth in Section 2.1(a).
Revolving Loan Note ” or “ Revolving Loan Notes ” shall mean the promissory notes of the Borrowers provided pursuant to Section 2.1(e) in favor of any of the Revolving Lenders evidencing the Revolving Loan provided by any such Revolving Lender, individually or collectively, as appropriate.
S&P ” shall mean S&P Global Ratings, a segment of S&P Global Inc., or any successor thereto.
Sanctioned Entity ” shall mean (a) a country, region or territory or a government of a country, region or territory, (b) an agency of the government of a country, region or territory, (c) an organization directly or indirectly controlled by a country, region or territory or its government or (d) a person or entity located, organized or resident in or determined to be resident in a country, region or territory, that is subject to Sanctions, which currently include Crimea, Cuba, Iran, North Korea, Sudan and Syria.
Sanctioned Person ” shall mean, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by OFAC, the U.S. Department of State, or by the United Nations Security Council, the European Union or any European Union member state, (b) any Person operating, organized or resident in a country, region or territory which is itself the subject or target of any Sanctions or (c) any Person that is, or is owned or controlled by any such Person or Persons, described in the foregoing clauses (a) or (b) or by any such Person or Persons that is the subject or target of any Sanctions.
Sanctions ” shall mean any sanctions or restrictive measures enacted, administered, imposed or enforced by OFAC, the U.S. Department of State, the United Nations Security Council, the European Union, Her Majesty’s Treasury, or other relevant sanctions authority.
Sarbanes‑Oxley ” shall mean the Sarbanes‑Oxley Act of 2002.
SEC ” shall mean the Securities and Exchange Commission or any successor Governmental Authority.
Secured Net Leverage Ratio ” shall mean, at any date of determination, the ratio of (a) Consolidated Funded Debt at such date that is secured by a Lien less unrestricted (it being understood that cash and Cash Equivalents shall not be deemed restricted as a result of Liens pursuant to the Credit Documents) cash and Cash Equivalents on hand of the Group Members that is not subject to a Lien (other than Liens in favor of the Administrative Agent and Liens permitted under Section 6.2(g)) in an amount not to exceed $100,000,000 to (b) Consolidated EBITDA for the four (4) consecutive quarters ending on such date.
Secured Parties ” shall mean, collectively, the Administrative Agent, each Issuing Lender, each Swingline Lender, each other Lender and each Bank Product Provider.
Securities Act ” shall mean the Securities Act of 1933, together with any amendment thereto or replacement thereof and any rules or regulations promulgated thereunder.


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Security Agreement ” shall mean the Security Agreement, dated as of the Original Effective Date and amended as of June 23, 2015, as the same may be further amended, restated, supplemented or otherwise modified from time to time, executed by the U.S. Credit Parties in favor of the Administrative Agent, for the benefit of the Secured Parties.
Security Documents ” shall mean the Security Agreement, any Foreign Pledge Agreement, any Deposit Account Control Agreement and all other agreements, documents and instruments relating to, arising out of, or in any way connected with any of the foregoing documents or granting to the Administrative Agent, for the benefit of the Secured Parties, Liens or security interests to secure, inter alia, the Obligations, whether now or hereafter executed and/or filed executed and delivered in connection with the granting, attachment and perfection of the Administrative Agent’s security interests and liens arising thereunder, including, without limitation, UCC financing statements.
Single Employer Plan ” shall mean any Plan that is not a Multiemployer Plan.
Solvent ” and “ Solvency ” shall mean, with respect to any Person on a particular date, that on such date (a) the fair value of the property of such Person is greater than the total amount of liabilities, including, without limitation, contingent liabilities, of such Person, (b) the present fair saleable value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured, (c) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay such debts and liabilities as they mature, (d) such Person is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Person’s property would constitute an unreasonably small capital, (e) in relation to any Person that has its seat in the Federal Republic of Germany, such Person is neither illiquid ( zahlungsunfähig ) within the meaning of section 17 German Insolvency Code ( Insolvenzordnung ), nor is its illiquidity imminent ( drohende Zahlungsunfähigkeit ) within the meaning of section 18 German Insolvency Code ( Insolvenzordnung ), nor is such Person over-indebted ( überschuldet ) within the meaning of section 19 German Insolvency Code ( Insolvenzordnung ), (f) in relation to any Person that has its seat in Luxembourg, such person is not in cessation of payments ( cessation de paiement ) within the meaning of article 437 of the Luxembourg Commercial Code and (g) in relation to any Person that is incorporated and registered in England and Wales, such Person is not deemed to be insolvent for the purposes of the Insolvency Act 1986. The amount of contingent liabilities at any time shall be computed as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.
Specified Acquisition Agreement Representations ” means such of the representations and warranties made by the Acquired Company or its Subsidiaries or Affiliates or with respect to the Acquired Company, its Subsidiaries or its business in the Acquisition Agreement as are material to the interests of the Lenders in their capacities as such, but only to the extent that the Company or its Affiliates have the right to terminate its or their respective obligations under the Acquisition Agreement or otherwise decline to close the Restatement Effective Date Acquisition as a result of a breach of any such representations and warranties or any such representations and warranties not being accurate.
Specified Representation Default ” shall have the meaning set forth in Section 2.23(e).
Specified Representations ” means the representations and warranties set forth in Sections 3.3 (solely with respect to clauses (a) and (c) of the first sentence thereof, in each case, solely with respect to each Credit Party and, in the case of clause (c) solely with respect to the authorization, execution, delivery and performance of the Credit Documents to which such Credit Party is or is to be party), 3.4 (solely with respect to (x) the first sentence thereof other than clauses (ii) and (iv) thereof, and, in each case, solely with respect to the


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execution, delivery and performance by each Credit Party of each Credit Document to which it is or is to be a party, and (y) the third and fourth sentences thereof), 3.7, 3.8, 3.11, 3.17, 3.18, 3.23 (solely with respect to the fourth and fifth sentences thereof), 3.25, 3.26 and 3.27.
Spot Rate ” shall mean, for any currency, with respect to any day, the rate determined on such date on the basis of the offered exchange rates, as reflected in the foreign currency exchange rate display of the Reuters Group (or on any successor or substitute page, or any successor to or substitute for Reuters Group, providing exchange rate quotations comparable to those currently provided by the Reuters Group on such page, as determined by the Administrative Agent from time to time) at or about 11:00 a.m. on the date two (2) Business Days prior to the date as of which the foreign exchange computation is made, to purchase Dollars with such currency (or such other foreign exchange purchase as is applicable); provided that, if at least two (2) such offered rates appear on such display, the rate shall be the arithmetic mean of such offered rates and, if no such offered rates are so displayed, the Spot Rate shall be determined by the Administrative Agent on the basis of the arithmetic mean of such offered rates as determined by the Administrative Agent in accordance with its normal practice.
Subsidiary ” shall mean, as to any Person, a corporation, partnership, limited liability company or other entity of which shares of stock or other ownership interests having ordinary voting power (other than stock or such other ownership interests having such power only by reason of the happening of a contingency) to elect a majority of the board of directors or other managers of such corporation, limited liability company, partnership or other entity are at the time owned, or the management of which is otherwise controlled, directly or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise qualified, all references to a “Subsidiary” or to “Subsidiaries” in this Agreement or any other Credit Document shall refer to a Subsidiary or Subsidiaries of the Company.
Subject Party ” shall have the meaning set forth in Section 2.16(b)(iii).
Supplier ” shall have the meaning set forth in Section 2.16(b)(iii).
Swap Obligation ” shall mean, with respect to any Guarantor, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act.
Swingline Commitment ” shall mean the commitment of the Swingline Lenders to make Swingline Loans in an aggregate principal amount at any time outstanding up to the Swingline Sublimit, and the commitment of the Revolving Lenders to purchase participation interests in the Swingline Loans as provided in Section 2.4(b)(ii), as such amounts may be reduced from time to time in accordance with the provisions hereof or increased in connection with assignments made in accordance with the terms hereof.
Swingline Committed Amount ” shall mean the aggregate amount of the Swingline Lenders’ U.S. Swingline Committed Amount and Multicurrency Swingline Committed Amount. The Swingline Committed Amount is part of, and not in addition to, the Revolving Commitments.
Swingline Lenders ” shall mean the U.S. Swingline Lenders and the Multicurrency Swingline Lenders, and “ Swingline Lender ” shall mean any of them.
Swingline Exposure ” means, with respect to any Lender, an amount equal to the Revolving Commitment Percentage of such Lender multiplied by the principal amount of outstanding Swingline Loans.
Swingline Loan ” shall have the meaning set forth in Section 2.4(a).


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Swingline Loan Note ” shall mean the promissory note of the applicable Borrower in favor of the applicable Swingline Lender evidencing the Swingline Loans provided pursuant to Section 2.4(d).
Swingline Sublimit ” shall mean the lesser of (a) the Swingline Committed Amount and (b) the Dollar Equivalent of FIFTY MILLION DOLLARS ($50,000,000).
Syndication Agent ” shall mean JPMorgan Chase Bank, N.A., in its capacity as syndication agent with respect to this Agreement.
Target ” shall have the meaning set forth in the definition of “Acquisition”.
Target Settlement Day ” means any day on which the Trans-European Automated Real-Time Gross Settlement Express Transfer (TARGET) System is open for settlement of payment in Euros.
Tax Confirmation ” shall mean, with respect to a Borrower incorporated in the U.K., a confirmation by a Lender that the person beneficially entitled to interest payable to that Lender in respect of an advance under a Credit Document is either (i) a company resident in the U.K. for U.K. tax purposes; or (ii) a partnership each member of which is (A) a company so resident in the U.K.; or (B) a company not so resident in the U.K. which carries on a trade in the U.K. through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of the CTA) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of the CTA; or (C) a company not so resident in the U.K. which carries on a trade in the U.K. through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (within the meaning of section 19 of the CTA) of that company (a “ U.K. Tax Confirmation ”).
Tax Deduction ” shall mean a deduction or withholding for or on account of Tax from a payment under a Credit Document.
Taxes ” or “ Tax ” shall mean all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, fines additions to tax or penalties applicable thereto.
Term Loan ” shall mean the term loans extended to the Company pursuant to the Term Loan Commitments, including, unless the context otherwise requires, any Incremental Term Loans. The amount of each Lender’s Term Loan as of the Restatement Effective Date is set forth on Schedule 2.1 hereto. The aggregate amount of Term Loans outstanding on the Restatement Effective Date is $650,000,000.
Term Loan Commitment ” shall mean, with respect to each Term Loan Lender, the commitment of such Term Loan Lender to make its portion of the Term Loan in a principal amount equal to such Term Loan Lender’s Term Loan Commitment Percentage. For the avoidance of doubt, each Lender’s Term Loan Commitment includes such Lender’s Commitment to make Incremental Term Loans, if any.
Term Loan Commitment Percentage ” shall mean, with respect to each Term Loan Lender, the percentage obtained by dividing the amount of its Term Loan Commitment by the aggregate amount of the Term Loan Commitments of all Lenders.
Term Loan Facility ” shall mean the facility providing Term Loans hereunder.
Term Loan Lender ” shall mean a Lender holding a Term Loan Commitment or a portion of the outstanding Term Loans.


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Term Loan Note ” or “ Term Loan Notes ” shall mean the promissory notes of the Company (if any) in favor of any of the Term Loan Lenders evidencing the portion of the Term Loan provided by any such Term Loan Lender, individually or collectively, as appropriate.
Termination Value ” shall mean, in respect of any one or more Hedging Agreements, after taking into account the effect of any legally enforceable netting agreement relating to such Hedging Agreements, (a) for any date on or after the date such Hedging Agreements have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Hedging Agreements, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Hedging Agreements (which may include a Lender or any Affiliate of a Lender).
Total Leverage Ratio ” shall mean, at any date of determination, the ratio of (a) Consolidated Funded Debt at such date to (b) Consolidated EBITDA for the four (4) consecutive quarters ending on such date.
Total Net Leverage Ratio ” shall mean, at any date of determination, the ratio of (a) Consolidated Funded Debt at such date less unrestricted (it being understood that cash and Cash Equivalents shall not be deemed restricted as a result of Liens pursuant to the Credit Documents) cash and Cash Equivalents on hand of the Group Members that is not subject to a Lien (other than Liens in favor of the Administrative Agent and Liens permitted under Section 6.2(g)) in an amount not to exceed $100,000,000 to (b) Consolidated EBITDA for the four (4) consecutive quarters ending on such date.
Tranche ” shall mean the collective reference to (a) LIBOR Market Index Rate Loans advanced on the same day, (b) LIBOR Rate Loans whose Interest Periods begin and end on the same day, (c) EURIBOR Market Index Rate Loans advanced on the same day, (d) EURIBOR Rate Loans whose Interest Periods begin and end on the same day and (e) Alternate Base Rate Loans made on the same day.
Transaction Costs ” means all costs, fees and expenses (including premiums and original issue discount) incurred by the Company or any Subsidiary in connection with the Transactions.
Transactions ” shall mean, collectively, (a) the closing of this Agreement (including the initial borrowings thereunder and the use of proceeds thereof), (b) the merger of Ivory Merger Sub, Inc., a Delaware corporation and direct wholly-owned Subsidiary of the Company (“ Ivory Merger Sub ”), with and into Silver Spring Networks, Inc., a Delaware corporation (the “ Acquired Company ”), pursuant to the terms of the Agreement and Plan of Merger dated as of September 17, 2017, by and among the Acquired Company, the Company and Ivory Merger Sub (together with all exhibits and schedules thereto, the “ Acquisition Agreement ”), with the Acquired Company surviving such merger as a direct wholly-owned Subsidiary of the Company and changing its corporate name to Itron Networked Solutions, Inc., and the consummation of the other transactions contemplated thereby (this clause (b) collectively, the “ Restatement Effective Date Acquisition ”), (c) the consummation of the Existing Indebtedness Refinancing, (d) the payment of the Transaction Costs and (e) the execution and delivery by the Credit Parties and their Affiliates, as applicable, of the 2017 Senior Notes Indenture and related documentation, the issuance of the 2017 Senior Notes, the release of the proceeds thereof from any escrow or similar arrangement and the use of proceeds thereof.
Treasury Services Agreement ” shall mean any agreement relating to (a) treasury, depositary and cash management services or automated clearinghouse transfer of funds, (b) any Foreign Working Capital Obligations or (c) commercial credit card, purchase card and merchant card services.
Treaty Lender ” shall mean, with respect to a Borrower incorporated in the U.K., a Lender that: (a) is treated as a resident of a jurisdiction having a double taxation agreement with the U.K. that makes provision


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for full exemption from tax on payments of interest imposed by the U.K., and (b) does not carry on a business in the U.K. through a permanent establishment with which that Lender’s participation in the Loan is effectively connected.
Type ” shall mean, as to any Loan, its nature as an Alternate Base Rate Loan, EURIBOR Market Index Rate Loan, EURIBOR Rate Loan, LIBOR Market Index Rate Loan or LIBOR Rate Loan, as the case may be.
UCC ” shall mean the Uniform Commercial Code from time to time in effect in any applicable jurisdiction.
U.K. ” shall mean England and Wales or, in relation to Taxes only, the United Kingdom of Great Britain and Northern Ireland.
U.K. Borrowers ” shall mean (i) Itron Development UK Ltd., a limited liability company incorporated under the laws of England and Wales, with registered number 6195664, (ii) Itron Metering Solutions UK Limited, a limited liability company incorporated under the laws of England and Wales, with registered number 4274515, and (iii) and any other Foreign Subsidiary incorporated or organized under the laws of England and Wales and designated as a Foreign Borrower pursuant to Section 2.23.
U.K. Credit Parties ” shall mean any Credit Party incorporated or organized under the laws of England and Wales.
U.K. Tax Confirmation ” shall have the meaning set forth in the definition of “Tax Confirmation.”
U.S. Credit Parties ” shall mean the Company and the Company Guarantors.
U.S. Issuing Lender ” shall mean, as the context may require, (a) with respect to (i) all Existing Letters of Credit denominated in Dollars, Wells Fargo, JPMorgan Chase Bank, N.A. and Silicon Valley Bank, and (ii) all other Letters of Credit issued on behalf of the Company in Dollars, (w) Wells Fargo, (x) JPMorgan Chase Bank, N.A., (y) Silicon Valley Bank or (z) such other Lender as determined by the Company and approved by the Administrative Agent (which approval shall not be unreasonably withheld) that agrees to be a U.S. Issuing Lender, as applicable, and (b) any successor U.S. Issuing Lender hereunder.
U.S. Obligations ” shall mean, collectively, (a) all of the obligations, Indebtedness and liabilities of the U.S. Credit Parties to the Lenders (including the Issuing Lenders and the Swingline Lenders) and the Administrative Agent, whenever arising, under this Agreement, the Notes or any of the other Credit Documents, including principal, interest, fees, costs, charges, expenses, professional fees, reimbursements, all sums chargeable to the U.S. Credit Parties or for which any U.S. Credit Party is liable as an indemnitor and whether or not evidenced by a note or other instrument, indemnification obligations and other amounts and all amounts owing under Article XI by any Credit Party pursuant to the Guaranty provided therein (including, but not limited to, any interest accruing after the occurrence of a filing of a petition of bankruptcy under any Debtor Relief Law with respect to any Group Member, regardless of whether such interest is an allowed claim under any Debtor Relief Law), and (b) all obligations, Indebtedness and liabilities of any U.S. Credit Party under each Hedging Agreement or Treasury Services Agreement entered into with any Bank Product Provider, including principal, interest, fees, costs, charges, expenses, professional fees, reimbursements, guaranty obligations, all sums chargeable to any U.S. Credit Party or for which any U.S. Credit Party is liable as an indemnitor and whether or not evidenced by a note or other instrument, indemnification obligations and other amounts, in each case, under any Hedging Agreement or Treasury


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Services Agreement (including, but not limited to, any interest accruing after the occurrence of a filing of a petition of bankruptcy under any Debtor Relief Law with respect to any Group Member, regardless of whether such interest is an allowed claim under such Debtor Relief Law).
U.S. Person ” shall mean any Person that is a “United States person” as defined in Section 7701(a)(30) of the Code.
U.S. Swingline Lender ” shall mean (i) Wells Fargo or (ii) such other Lender as determined by the Company and approved by the Administrative Agent (which approval shall not be unreasonably withheld) that agrees to be a U.S. Swingline Lender, and any successor U.S. Swingline Lender hereunder.
U.S. Swingline Committed Amount ” has the meaning set forth in Section 2.4(a). The U.S. Swingline Committed Amount is part of, and not in addition to, the Revolving Commitments.
U.S. Tax Compliance Certificate ” has the meaning set forth in Section 2.16(f)(ii)(B)(III) and shall be in substantially the same form as the applicable certificate set forth on Exhibit I .
VAT ” shall mean (a) any tax imposed in compliance with the council directive of 28 November 2006 on the common system of value added tax (EC Directive 2006/112), and (b) any other tax of similar nature, whether imposed in a member state of the European Union in substitution for, or levied in addition to such tax referred to in (a) or elsewhere.
Voting Stock ” shall mean, with respect to any Person, Equity Interests issued by such Person the holders of which are ordinarily, in the absence of contingencies, entitled to vote for the election of directors (or persons performing similar functions) of such Person, even though the right so to vote may be or have been suspended by the happening of such a contingency.
Weighted Average Life to Maturity ” shall mean, when applied to any Indebtedness at any date, the number of years obtained by dividing: (i) the sum of the products obtained by multiplying (a) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect thereof, by (b) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by (ii) the then outstanding principal amount of such Indebtedness; provided, that for purposes of determining the Weighted Average Life to Maturity of any Indebtedness that is being refinanced, refunded, renewed, replaced or extended (the “ Applicable Indebtedness ”), the effects of any amortization of or prepayments made on such Applicable Indebtedness prior to the date of the applicable modification, refinancing, refunding, renewal, replacement or extension shall be disregarded.
Wells Fargo ” shall mean Wells Fargo Bank, National Association, a national banking association, together with its successors and/or assigns.
WFS ” shall mean Wells Fargo Securities, LLC, together with its successors and assigns.
Wholly Owned Subsidiary ” shall mean, with respect to any person, any corporation, partnership, limited liability company or other entity of which all of the Equity Interests (other than, in the case of a corporation, directors’ qualifying shares or nominee shares required under applicable law) are directly or indirectly owned or controlled by such person and/or one or more Wholly Owned Subsidiaries of such person.
Withholding Agent ” shall mean a Credit Party, the Administrative Agent, or, in the case of any Lender that is treated as a partnership for U.S. federal income tax purposes, such Lender or any partnership for U.S. federal income tax purposes that is a direct or indirect (through a chain of entities treated as flow-


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through entities for U.S. federal income tax purposes) beneficial owner of such Lender, or any of their respective agents, that is required under applicable law to deduct or withhold any Tax from a payment by or on account of any obligation of any Credit Party under any Credit Document.
Write-Down and Conversion Powers ” means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.
Section 1.2      Other Definitional Provisions .
The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The word “will” shall be construed to have the same meaning and effect as the word “shall.” Unless the context requires otherwise (a) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, restated, supplemented, amended and restated or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein), (b) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (c) the words “herein,” “hereof” and “hereunder,” and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (d) all references herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement, (e) any reference to any law or regulation herein shall, unless otherwise specified, refer to such law or regulation as amended, modified or supplemented from time to time, (f) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights and (g) all terms defined in this Agreement shall have the defined meanings when used in any other Credit Document or any certificate or other document made or delivered pursuant hereto.
Section 1.3      Accounting Terms .
(a)      Generally . All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, as in effect from time to time, applied in a manner consistent with that used in preparing the most recently delivered audited Consolidated financial statements of the Company, except as otherwise specifically prescribed herein.

(b)      Changes in GAAP . If at any time any change in GAAP would affect the computation of any financial ratio, requirement or basket amount set forth in any Credit Document, and either the Company or the Required Lenders shall so request, the Administrative Agent, the Lenders and the Company shall negotiate in good faith to amend such ratio, requirement or basket amount to preserve the original intent thereof in light of such change in GAAP (subject to the approval of the Required Lenders); provided that , until so amended, (i) such ratio, requirement or basket amount shall continue to be computed in accordance with GAAP prior to such change therein and (ii) the Company shall provide to the Administrative Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio, requirement or basket amount made before and after giving effect to such change in GAAP.


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(c)      Financial Covenant Calculations; Calculations on a Pro Forma Basis . The parties hereto acknowledge and agree that, (i) for purposes of all calculations made in determining compliance for any applicable period with the financial covenants set forth in Section 6.13 and for purposes of determining the Applicable Margin, Permitted Acquisitions, Investments permitted pursuant to Section 6.5(c), 6.5(m) or 6.5(n), Asset Sales, sales or other dispositions pursuant to Section 6.4(b)(iv) and Restricted Payments during such period will be given effect on a Pro Forma Basis and (ii) with respect to all calculations made in determining compliance on a Pro Forma Basis with the financial covenants set forth in Section 6.13 for purposes of determining the permissibility of a particular transaction, including with respect to determining the Total Net Leverage Ratio on a Pro Forma Basis, (x) such calculations shall be, subject to Section 1.3(d), based on the financial statements most recently delivered to the Administrative Agent pursuant to Section 5.1(a) or (b) (and, with respect to Permitted Acquisitions or Investments permitted pursuant to Section 6.5(c), 6.5(m) or 6.5(n), where applicable, the most recent financial statements of the Target as of the applicable date of determination), and adjusted on a Pro Forma Basis, and (y) any such calculations made prior to the first date on which the covenants set forth in Section 6.13 apply shall be made assuming that such covenants apply as of such date.

(d)      Delivery of Financial Statements . Unless otherwise specified, all reference herein to financial statements most recently delivered to the Administrative Agent pursuant to Section 5.1(a) or (b) shall, for periods prior to the first date on which such financial statements are required to be delivered, or for periods prior to the Restatement Effective Date not reflected therein, refer to the financial statements most recently filed with the SEC or the financial statements filed with the SEC reflecting such periods, as applicable.

Section 1.4      Time References .
Unless otherwise specified, all references herein to times of day shall be references to Eastern Time (daylight or standard, as applicable).
Section 1.5      Execution of Documents .
Unless otherwise specified, all Credit Documents and all other certificates executed in connection therewith must be signed by a Responsible Officer.
Section 1.6      Redenomination of Certain Foreign Currencies and Computation of Dollar Amounts; Exchange Rates; Currency Equivalents; Alternate Funding Office .
(a)      Each obligation of each Borrower to make a payment denominated in the National Currency Unit of any member state of the European Union that adopts the Euro as its lawful currency after the Restatement Effective Date shall be redenominated into Euro at the time of such adoption (in accordance with the EMU Legislation). If, in relation to the currency of any such member state, the basis of accrual of interest expressed in this Credit Agreement in respect of that currency shall be inconsistent with any convention or practice in the London interbank market for the basis of accrual of interest in respect of the Euro, such expressed basis shall be replaced by such convention or practice with effect from the date on which such member state adopts the Euro as its lawful currency; provided that if any Extension of Credit in the currency of such member state is outstanding immediately prior to such date, such replacement shall take effect, with respect to such Extension of Credit, at the end of the then current Interest Period.



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(b)      Each provision of this Credit Agreement shall be subject to such reasonable changes of construction as the Administrative Agent may from time to time specify to be appropriate to reflect the adoption of the Euro by any member state of the European Union and any relevant market conventions or practices relating to the Euro.

(c)      Each provision of this Credit Agreement also shall be subject to such reasonable changes of construction or reasonable modifications as the Administrative Agent may from time to time specify to be appropriate to reflect a change in currency of any country and any relevant market conventions or practices relating to the change in currency or to reflect adoption of additional currencies as Foreign Currencies or the issuance of Letters of Credit in currencies which are not Foreign Currencies as of the date hereof.

(d)      The Administrative Agent or the applicable Issuing Lender, as applicable, shall determine the Spot Rate as of each Revaluation Date to be used for calculating the Dollar Equivalents of Extensions of Credit and amounts outstanding hereunder denominated in a Foreign Currency. Such Spot Rate shall become effective as of such Revaluation Date and shall be the Spot Rate employed in converting any amounts between the applicable currencies until the next Revaluation Date to occur. Except for purposes of financial statements delivered by the Credit Parties hereunder or calculating financial covenants hereunder or, except as otherwise provided herein, the applicable amount of any currency (other than Dollars) for purposes of the Credit Documents shall be such Dollar Equivalent amount as so determined by the Administrative Agent or the applicable Issuing Lender, as applicable.

(e)      Wherever in this Agreement, in connection with any Extension of Credit, any conversion, continuation or prepayment of a Loan or the issuance, amendment or renewal of a Letter of Credit, an amount, such as a required minimum or multiple amount, is expressed in Dollars (but not the applicable Foreign Currency), but such Extension of Credit or Loan is denominated in a Foreign Currency, such amount shall be the relevant Foreign Currency Equivalent of such Dollar amount, as reasonably determined by the Administrative Agent or the applicable Issuing Lender, as the case may be.

(f)      Where the permissibility of a transaction (other than Extensions of Credit as permitted above) depends upon compliance with, or is determined by reference to, amounts stated in Dollars, any amount in respect of such transaction stated in another currency shall be translated to Dollars at the Spot Rate then in effect at the time such transaction is entered into and the permissibility of actions taken hereunder shall not be affected by subsequent fluctuations in exchange rates.

(g)      For purposes of determining compliance with any Dollar-denominated restriction on the incurrence of Indebtedness, the Dollar Equivalent principal amount of Indebtedness denominated in a currency other than Dollars shall be calculated based on the relevant Spot Rate in effect on the date such Indebtedness was incurred, in the case of term debt, or first committed or incurred (as determined by the Company), in the case of revolving credit debt; provided that if such Indebtedness is incurred to extend, replace, refund, refinance, renew or defease other Indebtedness denominated in a currency other than Dollars, and such extension, replacement, refunding, refinancing, renewal or defeasance would cause the applicable Dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such extension, replacement, refunding, refinancing, renewal or defeasance, such Dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing


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Indebtedness does not exceed the principal amount of such Indebtedness being extended, replaced, refunded, refinanced, renewed or defeased. The principal amount in Dollars of any Indebtedness incurred to extend, replace, refund, refinance, renew or defease other Indebtedness, if incurred in a different foreign currency from the Indebtedness being extended, replaced, refunded, refinanced, renewed or defeased, shall be calculated based on the Spot Rate applicable to the currencies in which such respective Indebtedness is denominated that is in effect on the date of such extension, replacement, refunding, refinancing, renewal or defeasance.

(h)      In the event Loans or Commitments in a Foreign Currency are to the taken into account in determining any approval, consent or direction by Required Lenders, such Foreign Currency amounts shall be translated into Dollars at the Spot Rate on a date after the request for such approval, consent or direction selected by the Administrative Agent for purposes of determining Required Lender approval, consent or direction.

(i)      Determinations by the Administrative Agent pursuant to this Section 1.6 shall be conclusive absent demonstrable error.

(j)      Subject to the provisions of Section 10.26, each provision in this Agreement relating to payments to be made by any Borrower on account of principal, interest and fees which requires payment in Dollars, shall be deemed to mean (i) in the case of Loans or other amounts denominated in Dollars, payment in Dollars and (ii) in the case of Loans or other amounts denominated in a Foreign Currency, payment in such Foreign Currency.

(k)      Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the Dollar Equivalent of the maximum face amount of such Letter of Credit in effect at such time; provided , however , that with respect to any Letter of Credit that, by its terms or the terms of any LOC Document related thereto, provides for one or more automatic increases in the face amount thereof, the amount of such Letter of Credit shall be deemed to be Dollar Equivalent of the maximum face amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum face amount is in effect at such time.

(l)      Notwithstanding anything to the contrary herein, each Lender may, at its option, make any Loan available to any Foreign Subsidiary Borrower by causing any foreign or domestic branch or Affiliate of such Lender to make such Loan; provided that any exercise of such option shall not affect the obligation of such Foreign Subsidiary Borrower to repay such Loan in accordance with the terms of this Agreement.

Section 1.7      Alternative Currencies .
(a)      The Company may from time to time request that Revolving Loans be made and/or Letters of Credit be issued in a foreign currency that is not an Alternative Currency (the “ Proposed Currency ”). In the case of any such request with respect to the making of Revolving Loans or Swingline Loans, such request shall be subject to the approval of the Administrative Agent and the Revolving Lenders; and in the case of any such request with respect to the issuance of Letters of Credit, such request shall be subject to the approval of the Administrative Agent and the Multicurrency Issuing Lenders.

(b)      Any such request shall be made to the Administrative Agent not later than 11:00 a.m., fifteen (15) Business Days prior to the date of the desired Revolving Loan borrowing or Letter


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of Credit issuance, as the case may be (or such shorter period as may be agreed by the Administrative Agent and, in the case of any such request pertaining to Letters of Credit, the Multicurrency Issuing Lenders, in their sole discretion). In the case of any such request pertaining to Revolving Loans or Swingline Loans, the Administrative Agent shall promptly notify each Revolving Lender thereof; and in the case of any such request pertaining to Letters of Credit, the Administrative Agent shall promptly notify the Multicurrency Issuing Lenders thereof. Each Revolving Lender (in the case of any such request pertaining to Revolving Loans) or each Multicurrency Issuing Lender (in the case of a request pertaining to Letters of Credit) shall notify the Administrative Agent, not later than 11:00 a.m., ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent and, in the case of any such request pertaining to Letters of Credit, the Multicurrency Issuing Lenders, in their sole discretion) after receipt of such request whether it consents, in its sole discretion, to the making of Revolving Loans or the issuance of Letters of Credit, as the case may be, in such Proposed Currency.

(c)      Any failure by a Revolving Lender or a Multicurrency Issuing Lender, as the case may be, to respond to such request within the time period specified in the preceding sentence shall be deemed to be a refusal by such Lender or such Issuing Lender, as the case may be, to permit Revolving Loans to be made or Letters of Credit to be issued, as applicable, in such Proposed Currency. If the Administrative Agent and all the Revolving Lenders consent to making LIBOR Market Index Rate Loans and/or LIBOR Rate Loans that are Revolving Loans in such Proposed Currency, the Administrative Agent shall so notify the Company, and such Proposed Currency shall thereupon be deemed for all purposes to be an Alternative Currency hereunder solely with respect to Revolving Loans and Swingline Loans; and if the Administrative Agent and the Multicurrency Issuing Lenders consent to the issuance of Letters of Credit in such Proposed Currency, the Administrative Agent shall so notify the Company and such Proposed Currency shall thereupon be deemed for all purposes to be an Alternative Currency hereunder solely with respect to any Letter of Credit issuances. If the Administrative Agent shall fail to obtain consent to any request for an additional Alternative Currency under this Section 1.7, the Administrative Agent shall promptly so notify the Company.

(d)      Notwithstanding the foregoing, in the event the Borrowers desire to borrow Revolving Loans in a currency, other than Dollars or a Foreign Currency, which is freely traded in the London interbank market and is then freely transferable and freely convertible into Dollars, and some, but not all, of the Revolving Lenders are willing to fund such borrowing in the Borrowers’ desired currency, the Borrowers shall be permitted, with the prior consent of the Administrative Agent and Additional Alternative Currency Lenders, to create a subtranche of the Revolving Facility in which only Revolving Lenders willing to fund in the desired currency (each such currency, an “ Additional Alternative Currency ” and each such Lender, an “ Additional Alternative Currency Lender ”) shall be required to make Loans to the Borrowers, and with respect to such subtranche, such Additional Alternative Currency shall be deemed to be an Alternative Currency for all purposes hereof (except with respect to repayments to and borrowings from Lenders that are not Additional Alternative Currency Lenders). The aggregate outstanding amount of Loans denominated in an Additional Alternative Currency (such Loans, the “ Additional Alternative Currency Loans ”) shall not exceed $100,000,000 at any time.

(e)      Each Revolving Lender agrees to acquire participations in Additional Alternative Currency Loans upon the making of such Additional Alternative Currency Loans as provided below. The Additional Alternative Currency Lenders may by written notice given to the Administrative Agent not later than 9:00 a.m., London time, on any Business Day require the Revolving Lenders


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to fund such acquisition of participations on such Business Day in all or a portion of the outstanding Additional Alternative Currency Loans. Such notice shall specify the aggregate amount of Additional Alternative Currency Loans in which Revolving Lenders will fund such participations. Promptly upon receipt of such notice, the Administrative Agent will give written notice thereof to each Revolving Lender, specifying in such notice such Lender’s Revolving Commitment Percentage of such Additional Alternative Currency Loans and the Dollar Equivalent thereof as of such date. Each Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent in Dollars, for the account of the Additional Alternative Currency Lenders, such Revolving Lender’s Revolving Commitment Percentage of the Dollar Equivalent (determined as of the date of such notice) of such Additional Alternative Currency Loans; provided that no Additional Alternative Currency Lender will be required to make the payments under this sentence to the extent it already holds Additional Alternative Currency Loans in an amount equal to or in excess of its Revolving Commitment Percentage of the Additional Alternative Currency Loans. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations in Additional Alternative Currency Loans pursuant to this paragraph (e) is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or a reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each applicable Revolving Lender shall comply with its obligation under this paragraph (e) by wire transfer of immediately available Dollars, in the same manner as provided in Section 2.1 with respect to Revolving Loans made by such Lender, and the Administrative Agent shall promptly pay to each Additional Alternative Currency Lender such portions of the amounts so received by it from the Revolving Lenders so that, after giving effect thereto, each Revolving Lender (including each Additional Alternative Currency Lender) will hold an interest (directly or through such funded participations) in the Additional Alternative Currency Loans in an amount equal to its Revolving Commitment Percentage thereof. The Administrative Agent shall notify the Company of any participations in any Additional Alternative Currency Loans acquired pursuant to this paragraph (e). All such Revolving Loans shall be automatically converted to Dollar-denominated Revolving Loans bearing interest at the Alternate Base Rate (including each Additional Alternative Currency Lender’s portion thereof) in an amount equal to the Dollar Equivalent thereof as of (and with the Dollar Equivalent as determined as of) the date of conversion. Upon such conversions (and, notwithstanding the provisions of Section 10.6), all participations therein shall automatically be converted into assignments and held directly by the applicable Revolving Lenders that acquired such participations, and each Revolving Lender shall execute any assignment agreements or other documents requested by the Administrative Agent to give effect thereto. Thereafter payments in respect of such Revolving Loans shall be made to the Administrative Agent for the account of the Revolving Lenders. The amount of principal and interest paid on the Additional Alternative Currency Loans prior to receipt of the proceeds of a sale of participations therein shall be shared by the Additional Alternative Currency Lenders pro rata based on the amount of the Additional Alternative Currency Loans held by each. Any amounts received by the Administrative Agent or any Additional Alternative Currency Lender from any Borrower (or other party on behalf of a Borrower) in respect of any Additional Alternative Currency Loan after receipt by the Additional Alternative Currency Lenders of the proceeds of a sale of participations therein shall be promptly remitted by the Administrative Agent to the Revolving Lenders that shall have made their payments pursuant to this paragraph (e) and to the Additional Alternative Currency Lenders, as their interests may appear. The purchase of participations in Additional Alternative Currency Loans pursuant to this paragraph (e) shall not relieve any Borrower of any default in the payment thereof. At any point in time in which there is a Defaulting Lender, any Additional Alternative Currency Lender may require the Borrowers to Cash Collateralize the outstanding Additional Alternative Currency Loans pursuant to Section 2.20.


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(f)      Additional Alternative Currency Loans shall constitute Loans made under a subtranche of the Revolving Commitments but shall not constitute Revolving Loans under this Agreement unless and to the extent that participations therein are purchased by the Revolving Lenders that are not Additional Alternative Currency Lenders and converted into Dollar-denominated Revolving Loans as provided above. The Company and the Administrative Agent may make such modifications to this Agreement and the other Credit Documents as may be necessary or advisable to effect Revolving Loans, Swingline Loans or Letters of Credit denominated in an Alternative Currency or an Additional Alternative Currency subtranche as provided above.

Section 1.8      Limited Condition Acquisitions .
In the event that the Company notifies the Administrative Agent in writing that any proposed Acquisition is a Limited Condition Acquisition and that the Company wishes to test the conditions to such Acquisition and the ability to incur any Indebtedness to be used to finance such Acquisition in accordance with this Section 1.8, then, so long as agreed to by the Administrative Agent and the Lenders providing such Indebtedness, the following provisions shall apply:

(a)      any condition to such Acquisition or such Indebtedness that requires that no Default or Event of Default shall have occurred and be continuing at the time of such Acquisition or the incurrence of such Indebtedness, shall be satisfied if (i) no Default or Event of Default shall have occurred and be continuing at the time of the execution of the definitive purchase agreement, merger agreement or other acquisition agreement governing such Acquisition and (ii) no Event of Default under any of Section 7.1(a) or 7.1(e) shall have occurred and be continuing both before and after giving effect to such Acquisition and any Indebtedness incurred in connection therewith on a Pro Forma Basis (including such additional Indebtedness);

(b)      any condition to such Acquisition or such Indebtedness that the representations and warranties in this Agreement and the other Credit Documents shall be true and correct at the time of such Acquisition or the incurrence of such Indebtedness shall be subject to customary “SunGard” or other customary applicable “certain funds” conditionality provisions (including, without limitation, a condition that the representations and warranties under the relevant agreements relating to such Limited Condition Acquisition as are material to the lenders providing such Indebtedness shall be true and correct, but only to the extent that the Company or its applicable Subsidiary has the right to terminate its obligations under such agreement as a result of a breach of such representations and warranties or the failure of such representations and warranties to be true and correct, or otherwise decline to close the Acquisition as a result thereof), so long as all representations and warranties in this Agreement and the other Credit Documents are true and correct at the time of execution of the definitive purchase agreement, merger agreement or other acquisition agreement governing such Acquisition;

(c)      any financial ratio test, basket or condition may, upon the written election of the Company delivered to the Administrative Agent prior to the execution of the definitive agreement for such Acquisition, be tested either (i) upon the execution of the definitive agreement with respect to such Limited Condition Acquisition or (ii) upon the consummation of such Limited Condition Acquisition and related incurrence of Indebtedness, in each case, after giving effect to the relevant Limited Condition Acquisition and related incurrence of Indebtedness on a Pro Forma Basis; provided that the failure to deliver a notice under this Section 1.8(c) prior to the date of execution


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of the definitive agreement for such Limited Condition Acquisition shall be deemed an election to test the applicable financial ratio, basket or condition under subclause (ii) of this Section 1.8(c) ; and

(d)      if the Company has made an election with respect to any Limited Condition Acquisition to test a financial ratio test, basket or condition at the time specified in clause (c)(i) of this Section, then in connection with any subsequent calculation of any ratio or basket on or following the relevant date of execution of the definitive agreement with respect to such Limited Condition Acquisition and prior to the earlier of (i) the date on which such Limited Condition Acquisition is consummated and (ii) the date that the definitive agreement for such Limited Condition Acquisition is terminated or expires without consummation of such Limited Condition Acquisition, any such ratio or basket shall be required to be satisfied on a Pro Forma Basis (x) assuming such Limited Condition Acquisition and other transactions in connection therewith (including the incurrence or assumption of Indebtedness) have been consummated and (y) assuming such Limited Condition Acquisition and other transactions in connection therewith (including the incurrence or assumption of Indebtedness) have not been consummated.

The foregoing provisions shall apply with similar effect during the pendency of multiple Limited Condition Acquisitions such that each of the possible scenarios is separately tested.

Section 1.9      Rates .
The Administrative Agent does not warrant or accept responsibility for, and shall not have any liability with respect to, the administration, submission or any other matter related to the rates in the definition of “LIBOR”.


ARTICLE II
THE LOANS; AMOUNT AND TERMS
Section 2.1      Revolving Loans .
(a)      Revolving Commitment . During the Commitment Period, subject to the terms and conditions hereof, each Revolving Lender severally, but not jointly, agrees to make revolving credit loans (“ Revolving Loans ”) (x) in Dollars to the Company from time to time in an aggregate principal amount of up to FIVE HUNDRED MILLION DOLLARS ($500,000,000) (as such amount may be reduced from time to time as provided in Section 2.6 or increased pursuant to Section 2.22, the “ Revolving Committed Amount ”) for the purposes hereinafter set forth (such facility, the “ Revolving Facility ”) and (y) in Dollars and in Foreign Currencies to the Company or any Foreign Borrower from time to time in an aggregate principal amount not to exceed the Foreign Currency Sublimit; provided , however , that (i) with regard to each Revolving Lender individually, the sum of such Revolving Lender’s Revolving Commitment Percentage of the aggregate principal amount of outstanding Revolving Loans plus such Revolving Lender’s Revolving Commitment Percentage of outstanding Swingline Loans plus such Revolving Lender’s Revolving Commitment Percentage of outstanding LOC Obligations plus such Revolving Lender’s Revolving Commitment Percentage of outstanding Additional Alternative Currency Loans shall not exceed such Revolving Lender’s Revolving Commitment, (ii) with regard to the Revolving Lenders collectively, the sum of the aggregate principal amount of outstanding Revolving Loans plus outstanding Swingline Loans plus outstanding LOC Obligations plus outstanding Additional Alternative Currency Loans shall not exceed the Revolving Committed Amount then in effect and (iii) the aggregate principal amount of


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outstanding Revolving Loans denominated in a Foreign Currency plus outstanding Additional Alternative Currency Loans plus outstanding LOC Obligations with respect to Letters of Credit denominated in a Foreign Currency plus outstanding obligations in respect of Swingline Loans denominated in a Foreign Currency, shall not exceed the Foreign Currency Sublimit. Revolving Loans may consist of Alternate Base Rate Loans, Eurocurrency Loans, or a combination thereof, as the applicable Borrower may request and, in each case, may be repaid and reborrowed in accordance with the provisions hereof; provided that (A) Revolving Loans denominated in Euros may consist of only EURIBOR Market Index Rate Loans or EURIBOR Rate Loans, (B) Revolving Loans denominated in British Pounds Sterling or Alternative Currencies may consist of only LIBOR Market Index Rate Loans or LIBOR Rate Loans, (C) Revolving Loans denominated in Dollars may consist of only Alternate Base Rate Loans, LIBOR Market Index Rate Loans or LIBOR Rate Loans and (D) unless otherwise agreed to by the Administrative Agent in its sole discretion, Revolving Loans made on the Restatement Effective Date or any of the three (3) Business Days following the Restatement Effective Date may only consist of Alternate Base Rate Loans unless the applicable Borrower delivers a funding indemnity letter in form and substance reasonably acceptable to the Administrative Agent not less than three (3) Business Days prior to the Restatement Effective Date. Eurocurrency Loans shall be made by each Revolving Lender at its Eurocurrency Lending Office and Alternate Base Rate Loans at its Domestic Lending Office. Notwithstanding the foregoing, the aggregate principal amount of Revolving Loans made on the Restatement Effective Date in order to finance the Transactions shall not exceed $235,000,000.

(b)      Revolving Loan Borrowings .

(i)      Notice of Borrowing . The applicable Borrower shall request a Revolving Loan borrowing by delivering a written Notice of Borrowing (or telephone notice promptly confirmed in writing by delivery of a written Notice of Borrowing, which delivery may be by fax) to the Administrative Agent not later than 11:30 a.m. on the date of the requested borrowing in the case of Alternate Base Rate Loans, on the third Business Day prior to the date of the requested borrowing in the case of LIBOR Market Index Rate Loans or LIBOR Rate Loans denominated in Dollars and on the fourth Business Day prior to the date of the requested borrowing in the case of Revolving Loans denominated in a Foreign Currency. Each such Notice of Borrowing shall be irrevocable and shall specify (A) that a Revolving Loan is requested, (B) the date of the requested borrowing (which shall be a Business Day), (C) the aggregate principal amount to be borrowed, (D) whether the borrowing shall consist of Loans denominated in Euros, British Pounds Sterling, any Alternative Currency or in Dollars, (E) for borrowings denominated in Dollars, whether the borrowing shall be comprised of Alternate Base Rate Loans, LIBOR Market Index Rate Loans, LIBOR Rate Loans or a combination thereof, (F) for borrowings denominated in a Foreign Currency, the currency such Loans shall be denominated in and whether the borrowing shall be comprised of LIBOR Market Index Rate Loans, LIBOR Rate Loans, EURIBOR Market Index Rate Loans, EURIBOR Rate Loans or a combination thereof, and (G) if Eurocurrency Loans are requested (other than LIBOR Market Index Rate Loans or EURIBOR Market Index Rate Loans), the Interest Period(s) therefor. If the applicable Borrower shall fail to specify in any such Notice of Borrowing (1) an applicable Interest Period in the case of a Eurocurrency Loan, then such notice shall be deemed to be a request for an Interest Period of one month, (2) the Type of Revolving Loan requested, then ( provided that the applicable Borrower specified the currency of such borrowing) such notice shall be deemed to be a request for (w) an Alternate Base Rate Loan hereunder in the case of any Revolving Loan denominated in Dollars, or (x) a LIBOR Market Index Rate Loan or LIBOR Rate Loan hereunder in the


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case of any Revolving Loan denominated in British Pounds Sterling or an Alternative Currency, or (y) a EURIBOR Market Index Rate Loan or EURIBOR Rate Loan hereunder in the case of any Revolving Loan denominated in Euros, or (3) the currency of such borrowing, then such notice shall be deemed to be a request for Loans denominated in Dollars. The Administrative Agent shall give notice to each Revolving Lender promptly upon receipt of each Notice of Borrowing, the contents thereof and each such Revolving Lender’s share thereof.

(ii)      Minimum Amounts . Each Revolving Loan that is made as an Alternate Base Rate Loan shall be in a minimum aggregate amount of $5,000,000 and in integral multiples of $1,000,000 in excess thereof (or the remaining amount of the Revolving Committed Amount, if less). Each Revolving Loan that is made as a Eurocurrency Loan and denominated in Dollars shall be in a minimum aggregate amount of $5,000,000 and in integral multiples of $1,000,000 in excess thereof (or the remaining amount of the Revolving Committed Amount, if less). Each Revolving Loan that is made as a Eurocurrency Loan and denominated in Euros shall be in a minimum aggregate amount of €5,000,000 and in integral multiples of €1,000,000 in excess thereof (or the remaining amount of the Revolving Committed Amount, if less). Each Revolving Loan that is made as a Eurocurrency Loan and denominated in British Pounds Sterling shall be in a minimum aggregate amount of ₤5,000,000 and in integral multiples of ₤1,000,000 in excess thereof (or the remaining amount of the Revolving Committed Amount, if less). Each Revolving Loan denominated in an Alternative Currency shall be in a minimum aggregate Dollar Equivalent of $5,000,000 and in integral multiples of the Dollar Equivalent of $1,000,000.

(iii)      Advances . Each Revolving Lender will make its Revolving Commitment Percentage of each Revolving Loan borrowing available to the Administrative Agent, for the account of the applicable Borrower, in Dollars or the applicable Foreign Currency and in funds immediately available to the Administrative Agent, at the office of the Administrative Agent specified in Section 10.2, or at such other office as the Administrative Agent may designate in writing by (A) 2:30 p.m. on the date specified in the applicable Notice of Borrowing in the case of any Revolving Loan denominated in Dollars and (B) the Applicable Time specified by the Administrative Agent in the case of any Revolving Loan that is a Foreign Currency Loan. Such borrowing will then be made available to the applicable Borrower by the Administrative Agent by crediting the account of the applicable Borrower on the books of such office (or such other account that the applicable Borrower may designate in writing to the Administrative Agent) with the aggregate of the amounts made available to the Administrative Agent by the Revolving Lenders and in like funds as received by the Administrative Agent.

(c)      Repayment . Subject to the terms of this Agreement, Revolving Loans may be borrowed, repaid and reborrowed during the Commitment Period, subject to Section 2.7(a). The principal amount of all Revolving Loans shall be due and payable in full on the Maturity Date, unless accelerated sooner pursuant to Section 7.2. All payments with respect to Revolving Loans shall be made in the currency in which such Loans are denominated (subject to any Additional Alternative Currency Loans that may be converted to Dollars as provided in Section 1.7).



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(d)      Interest . Subject to the provisions of Section 2.8, Revolving Loans shall bear interest as follows:

(i)      Alternate Base Rate Loans . During such periods as any Revolving Loans shall be comprised of Alternate Base Rate Loans, each such Alternate Base Rate Loan shall bear interest at a per annum rate equal to the sum of the Alternate Base Rate plus the Applicable Margin;

(ii)      LIBOR Rate Loans . During such periods as Revolving Loans shall be comprised of LIBOR Rate Loans, each such LIBOR Rate Loan shall bear interest at a per annum rate equal to the sum of the LIBOR Rate plus the Applicable Margin;

(iii)      EURIBOR Rate Loans . During such periods as Revolving Loans shall be comprised of EURIBOR Rate Loans, each such EURIBOR Rate Loan shall bear interest at a per annum rate equal to the sum of the EURIBOR Rate plus the Applicable Margin;

(iv)      LIBOR Market Index Rate Loans . During such periods as Revolving Loans shall be comprised of LIBOR Market Index Rate Loans, each such LIBOR Market Index Rate Loan shall bear interest at a per annum rate equal to the sum of the LIBOR Market Index Rate plus the Applicable Margin; and

(v)      EURIBOR Market Index Rate Loans . During such periods as Revolving Loans shall be comprised of EURIBOR Market Index Rate Loans, each such EURIBOR Market Index Rate Loan shall bear interest at a per annum rate equal to the sum of the EURIBOR Market Index Rate plus the Applicable Margin.

Interest on Revolving Loans shall be payable in arrears on each Interest Payment Date.

(e)      Revolving Loan Notes; Covenant to Pay . Each Borrower’s obligation to pay each Revolving Lender shall be evidenced by this Agreement and, upon such Revolving Lender’s request, by a duly executed promissory note of the applicable Borrower to such Revolving Lender in substantially the form of Exhibit G-1 or Exhibit G-2 , as applicable. Each Borrower covenants and agrees to pay its Revolving Loans in accordance with the terms of this Agreement.
(f)      Breakage Costs . Each of the Lenders that is a Lender under (and as defined in) the Existing Credit Agreement hereby agrees to waive any amounts as may be otherwise owed under Section 2.15(a) of the Existing Credit Agreement in connection with the Existing Indebtedness Refinancing.
Section 2.2      Term Loan .
(a)      Term Loan Commitment . Subject to the terms and conditions hereof and in reliance upon the representations and warranties set forth herein, each Term Loan Lender severally, but not jointly, agrees to make available a Term Loan in Dollars to the Company on the Restatement Effective Date in an amount equal to such Term Loan Lender’s Term Loan Commitment Percentage of  SIX HUNDRED AND FIFTY MILLION DOLLARS ($650,000,000) for the purposes hereinafter set forth. The Term Loans may consist of Alternate Base Rate Loans, LIBOR Market Index Rate Loans or LIBOR Rate Loans, or a combination thereof, as the Company may request in the Notice of Borrowing delivered to the Administrative Agent prior to the Restatement Effective Date; provided ,


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however , that, unless otherwise agreed to by the Administrative Agent in its sole discretion, as of the Restatement Effective Date, such Term Loans may only consist of Alternate Base Rate Loans unless the Company delivers a funding indemnity letter, in form and substance reasonably acceptable to the Administrative Agent, not less than three (3) Business Days prior to the Restatement Effective Date. LIBOR Rate Loans and LIBOR Market Index Rate Loans shall be made by each Term Loan Lender at its Eurocurrency Lending Office, and Alternate Base Rate Loans shall be made by each Term Loan Lender at its Domestic Lending Office. Amounts repaid or prepaid on the Term Loans may not be reborrowed. The initial Term Loan Commitments shall automatically terminate at the earlier to occur of (a) the making of the Term Loans and (b) 5:00 p.m. on the Restatement Effective Date.

(b)      Repayment of Term Loans . The principal amount of the Term Loans shall be repaid in Dollars in consecutive quarterly installments in the amounts and on the dates set forth below, commencing June 30, 2018 ( provided , however , if such payment date is not a Business Day, such payment shall be due on the preceding Business Day), unless accelerated sooner pursuant to Section 7.2:

Date
    SCHEDULED REPAYMENT

June 30, 2018
September 30, 2018
December 31, 2018
   $4,062,500
   $4,062,500
   $4,062,500

March 31, 2019
June 30, 2019
September 30, 2019
December 31, 2019
   $4,062,500
   $8,125,000
   $8,125,000
   $8,125,000

March 31, 2020
June 30, 2020
September 30, 2020
December 31, 2020
   $8,125,000
   $12,187,500
   $12,187,500
   $12,187,500

March 31, 2021
June 30, 2021
September 30, 2021
December 31, 2021
   $12,187,500
   $16,250,000
   $16,250,000
   $16,250,000

March 31, 2022
June 30, 2022
September 30, 2022
December 31, 2022
   $16,250,000
   $16,250,000
   $16,250,000
   $16,250,000

Maturity Date
$438,750,000, or the remaining outstanding amount of the Term Loans

The outstanding principal amount of the Term Loans and all accrued but unpaid interest and other amounts payable with respect to the Term Loans shall be repaid on the Maturity Date.



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(c)      Interest on the Term Loans . Subject to the provisions of Section 2.8, the Term Loans shall bear interest as follows:

(i)      Alternate Base Rate Loans . During such periods as the Term Loans shall be comprised of Alternate Base Rate Loans, each such Alternate Base Rate Loan shall bear interest at a per annum rate equal to the sum of the Alternate Base Rate plus the Applicable Margin;

(ii)      LIBOR Rate Loans . During such periods as the Term Loans shall be comprised of LIBOR Rate Loans, each such LIBOR Rate Loan shall bear interest at a per annum rate equal to the sum of the LIBOR Rate plus the Applicable Margin; and

(iii)      LIBOR Market Index Rate Loans . During such periods as the Term Loans shall be comprised of LIBOR Market Index Rate Loans, each such LIBOR Market Index Rate Loan shall bear interest at a per annum rate equal to the sum of the LIBOR Market Index Rate plus the Applicable Margin.

Interest on the Term Loans shall be payable in arrears on each Interest Payment Date.

(d)      Term Loans Notes; Covenant to Pay . The Company’s obligation to pay each Term Loan Lender shall be evidenced by this Agreement and, upon such Term Loan Lender’s request, by a duly executed promissory note of the Company to such Term Loan Lender in substantially the form of Exhibit F . The Company covenants and agrees to pay the Term Loans in accordance with the terms of this Agreement. All payments with respect to Term Loans shall be in Dollars.

Section 2.3      Letter of Credit Subfacility .
(a)      Issuance . Subject to the terms and conditions hereof and of the LOC Documents, if any, and any other terms and conditions which any Issuing Lender may reasonably require, during the Commitment Period, (x) the U.S. Issuing Lenders shall issue, and the Revolving Lenders shall participate in, Letters of Credit for the account of the Company from time to time upon request in a form acceptable to the applicable U.S. Issuing Lender, and (y) the Multicurrency Issuing Lenders shall issue, and the Revolving Lenders shall participate in, Letters of Credit for the account of the Company or any Foreign Borrower from time to time upon request in a form acceptable to the applicable Multicurrency Issuing Lender; provided , however , that (i) the aggregate amount of LOC Obligations shall not at any time exceed THREE HUNDRED MILLION DOLLARS ($300,000,000) (the “ LOC Committed Amount ”), (ii) the sum of the aggregate principal amount of outstanding Revolving Loans plus outstanding Swingline Loans plus outstanding LOC Obligations plus the outstanding amount of Additional Alternative Currency Loans shall not at any time exceed the Revolving Committed Amount then in effect, (iii) all Letters of Credit shall be denominated in Dollars or a Foreign Currency, (iv) the aggregate principal amount of outstanding Revolving Loans denominated in a Foreign Currency, plus the outstanding LOC Obligations with respect to Letters of Credit denominated in a Foreign Currency plus outstanding obligations with respect to Swingline Loans denominated in a Foreign Currency plus the outstanding amount of Additional Alternative Currency Loans, shall not exceed the Foreign Currency Sublimit, (v) Letters of Credit shall be issued for any lawful business purposes and shall be issued as standby letters of credit or commercial letters of credit, including in connection with workers’ compensation and other insurance programs, and (vi) no Issuing Lender shall be required to issue any Letter of Credit if, after giving effect to such Letter of Credit, the LOC Obligations with respect to Letters of Credit issued by such Issuing Lender


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would exceed such Issuing Lender’s LOC Commitment. Except as otherwise expressly agreed in writing by all the Revolving Lenders, no Letter of Credit shall have an original expiry date more than thirty-six (36) months from the date of issuance; provided , however , that the expiry dates of Letters of Credit may be extended by the terms thereof automatically by operation of the terms of such Letter of Credit, unless the applicable Issuing Lender issues a notice of termination prior to such extension pursuant to the terms of such Letter of Credit, to a date not more than twelve (12) months from the date of extension and, so long as no default or Event of Default has occurred and is continuing and subject to the other terms and conditions to the issuance of Letters of Credit hereunder, annually or periodically from time to time on the request of the applicable Borrower to a date not more than twelve (12) months from the date of extension; provided , further , that no Letter of Credit, as originally issued or as extended, shall have an expiry date extending beyond the date that is ten (10) days prior to the Maturity Date. Each Letter of Credit shall comply with the related LOC Documents. The issuance and expiry date of each Letter of Credit shall be a Business Day. Each Letter of Credit issued hereunder shall be in a minimum original face amount of $50,000 or such lesser amount as approved by the applicable Issuing Lender. The Reimbursement Obligations of the Company and the applicable Borrower in respect of each Existing Letter of Credit, and each Revolving Lender’s participation obligations in connection therewith, shall be governed by the terms of this Credit Agreement. The Existing Letters of Credit shall, as of the Restatement Effective Date, be deemed to have been issued as Letters of Credit hereunder and shall be subject to and governed by the terms of this Agreement. Letters of Credit issued by any U.S. Issuing Lender shall be denominated in Dollars. Letters of Credit issued by any Multicurrency Issuing Lender shall be issued in a Foreign Currency.

(b)      Notice and Reports . The request for the issuance of a Letter of Credit shall be submitted to the Administrative Agent and the applicable Issuing Lender at least five (5) Business Days prior to the requested date of issuance or such shorter period of time that is approved by the applicable Issuing Lender. The applicable Issuing Lender will promptly upon request and upon any issuance or drawing with respect to any Letter of Credit provide to the Administrative Agent for dissemination to the Revolving Lenders a detailed report specifying the Letters of Credit which are then issued and outstanding and any activity with respect thereto which may have occurred since the date of any prior report, and including therein, among other things, the account party, the beneficiary, the face amount and the expiry date, as well as any payments or expirations which may have occurred. The applicable Issuing Lender will further provide to the Administrative Agent promptly upon request copies of the Letters of Credit. The applicable Issuing Lender will provide to the Administrative Agent promptly upon request and upon any issuance or drawing with respect to any Letter of Credit a summary report of the nature and extent of LOC Obligations then outstanding.

(c)      Participations . Each Revolving Lender, (i) on the Restatement Effective Date with respect to each Existing Letter of Credit and (ii) upon issuance of any other Letter of Credit, shall be deemed to have purchased a risk participation from the applicable Issuing Lender in such Letter of Credit and the obligations arising thereunder and any Collateral relating thereto, in each case in an amount equal to its Revolving Commitment Percentage of the obligations under such Letter of Credit and shall absolutely, unconditionally and irrevocably assume, as primary obligor and not as surety, and be obligated to pay to the applicable Issuing Lender therefor and discharge when due, its Revolving Commitment Percentage of the obligations arising under such Letter of Credit; provided that any Person that becomes a Revolving Lender after the Restatement Effective Date shall be deemed to have purchased a Participation Interest in all outstanding Letters of Credit on the date it becomes a Lender hereunder and any Letter of Credit issued on or after such date, in each case in accordance with the foregoing terms. Without limiting the scope and nature of each Revolving


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Lender’s participation in any Letter of Credit, to the extent that any Issuing Lender has not been reimbursed as required hereunder or under any LOC Document, each such Revolving Lender shall pay to the applicable Issuing Lender its Revolving Commitment Percentage of such unreimbursed drawing in same day funds pursuant to and in accordance with the provisions of subsection (d) hereof. The obligation of each Revolving Lender to so reimburse the Issuing Lenders shall be absolute and unconditional and shall not be affected by the occurrence of a Default, an Event of Default or any other occurrence or event. Any such reimbursement shall not relieve or otherwise impair the obligation of any Borrower to reimburse any Issuing Lender under any Letter of Credit, together with interest as hereinafter provided.

(d)      Reimbursement . In the event of any drawing under any Letter of Credit, the applicable Issuing Lender will promptly notify the Company and the Administrative Agent. The Company and the applicable Borrower shall reimburse the applicable Issuing Lender on the day of drawing under any Letter of Credit if notified prior to 3:00 p.m. on a Business Day or, if after 3:00 p.m., on the following Business Day (either with the proceeds of a Revolving Loan obtained hereunder or otherwise) in same day funds (x) in the case of Letters of Credit denominated in Dollars, Euros or British Pounds Sterling, in the currency in which such Letter of Credit is denominated as provided herein or in the LOC Documents and (y) in the case of Letters of Credit denominated in an Alternative Currency, in Dollars based on the Dollar Equivalent of such drawing as of such date. If the Company or the applicable Borrower shall fail to reimburse the applicable Issuing Lender as provided herein, the unreimbursed amount of such drawing shall automatically bear interest at a per annum rate equal to the Default Rate. Unless the Company shall promptly notify the applicable Issuing Lender and the Administrative Agent of its intent to otherwise reimburse the applicable Issuing Lender, the applicable Borrower shall be deemed to have requested a Mandatory LOC Borrowing in the amount of the drawing as provided in subsection (e) hereof, the proceeds of which will be used to satisfy the Reimbursement Obligations. Each Borrower’s Reimbursement Obligations hereunder shall be absolute and unconditional under all circumstances irrespective of any rights of set-off, counterclaim or defense to payment such Borrower may claim or have against the Issuing Lenders, the Administrative Agent, the Lenders, the beneficiary of the Letter of Credit drawn upon or any other Person, including, without limitation, any defense based on any failure of such Borrower to receive consideration or the legality, validity, regularity or unenforceability of the Letter of Credit. The Administrative Agent will promptly notify the other Revolving Lenders of the amount of any unreimbursed drawing and each Revolving Lender shall promptly pay to the Administrative Agent, for the account of the applicable Issuing Lender, in immediately available funds, the amount of such Revolving Lender’s Revolving Commitment Percentage of such unreimbursed drawing in Dollars based on the Dollar Equivalent ( provided that, such Dollar Equivalent will be determined in consultation with the applicable Issuing Lender) of such drawing as of such date. Such payment shall be made at or before 12:00 Noon on the Business Day next succeeding the Business Day notice is received by the Revolving Lenders from the Administrative Agent. If such Revolving Lender does not pay such amount to the Administrative Agent for the account of the applicable Issuing Lender in full upon such request, such Revolving Lender shall, on demand, pay to the Administrative Agent for the account of the applicable Issuing Lender interest on the unpaid amount during the period from the date of such drawing until such Revolving Lender pays such amount to the Administrative Agent for the account of the applicable Issuing Lender in full at a rate per annum equal to, if paid within two (2) Business Days of the date of drawing, the Federal Funds Effective Rate and thereafter at a rate equal to the Alternate Base Rate. Each Revolving Lender’s obligation to make such payment to the Issuing Lenders, and the right of the Issuing Lenders to receive the same, shall be absolute and unconditional, shall not be affected by any circumstance whatsoever and without regard to the termination of this Agreement or the Commitments hereunder, the existence


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of a Default or Event of Default or the acceleration of the Obligations hereunder and shall be made without any offset, abatement, withholding or reduction whatsoever.

(e)      Repayment with Revolving Loans . On any day on which a Borrower shall have requested, or been deemed to have requested, a Revolving Loan to reimburse a drawing under a Letter of Credit, the Administrative Agent shall give notice to the Revolving Lenders that a Revolving Loan has been requested or deemed requested in connection with a drawing under a Letter of Credit, in which case a Revolving Loan borrowing, in Dollars, in an amount equal to the Dollar Equivalent ( provided that, such Dollar Equivalent will be determined in consultation with the applicable Issuing Lender) of such drawing, comprised entirely of Alternate Base Rate Loans (each such borrowing, a “ Mandatory LOC Borrowing ”) shall be made (without giving effect to any termination of the Commitments pursuant to Section 7.2) pro rata based on each Revolving Lender’s respective Revolving Commitment Percentage (determined before giving effect to any termination of the Commitments pursuant to Section 7.2) and the proceeds thereof shall be paid directly to the Administrative Agent for the account of the applicable Issuing Lender for application to the respective LOC Obligations. Each Revolving Lender hereby irrevocably agrees to make such Revolving Loans at or before 12:00 Noon on the Business Day next succeeding the day notice is received by the Revolving Lenders from the Administrative Agent, in each case notwithstanding (i) the amount of Mandatory LOC Borrowing may not comply with the minimum amount for borrowings of Revolving Loans otherwise required hereunder, (ii) whether any conditions specified in Section 4.2 are then satisfied, (iii) whether a Default or an Event of Default then exists, (iv) failure for any such request or deemed request for Revolving Loan to be made by the time otherwise required in Section 2.1(b)(i), (v) the date of such Mandatory LOC Borrowing, or (vi) any reduction in the Revolving Committed Amount after any such Letter of Credit may have been drawn upon. In the event that any Mandatory LOC Borrowing cannot for any reason be made on the date otherwise required above (including, without limitation, as a result of the occurrence of a Bankruptcy Event), then each such Revolving Lender hereby agrees that it shall forthwith fund, in Dollars, the Dollar Equivalent ( provided that, such Dollar Equivalent will be determined in consultation with the applicable Issuing Lender) of its Participation Interests in the outstanding LOC Obligations at or before 12:00 Noon on the Business Day next succeeding the Business Day notice is received by the Revolving Lenders from the Administrative Agent; provided , further , that in the event any Lender shall fail to fund its Participation Interest as required herein, then the amount of such Revolving Lender’s unfunded Participation Interest therein shall automatically bear interest payable by such Revolving Lender to the Administrative Agent for the account of the applicable Issuing Lender upon demand, at the rate equal to, if paid within two (2) Business Days of such date, the Federal Funds Effective Rate, and thereafter at a rate equal to the Alternate Base Rate.

(f)      Modification, Extension . The issuance of any supplement, modification, amendment, renewal, or extension to any Letter of Credit shall, for purposes hereof, be treated in all respects the same as the issuance of a new Letter of Credit hereunder.

(g)      ISP98 . Unless otherwise expressly agreed by the applicable Issuing Lender and the applicable Borrower, when a Letter of Credit is issued (including any such agreement applicable to an Existing Letter of Credit), (i) the rules of the “International Standby Practices 1998” (or such later version thereof as may be in effect at the time of issuance) published by the Institute of International Banking Law & Practice shall apply to each standby Letter of Credit and (ii) the rules of the Uniform Customs and Practice for Documentary Credits, as most recently published by the International Chamber of Commerce (the “ ICC ”) at the time of issuance (including the ICC decision


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published by the Commission on Banking Technique and Practice on April 6, 1988 regarding the European single currency (Euro)) shall apply to each commercial Letter of Credit.

(h)      Conflict with LOC Documents . In the event of any conflict between this Agreement and any LOC Document (including any letter of credit application and any LOC Documents relating to the Existing Letters of Credit), this Agreement shall control.

(i)      Designation of Subsidiaries as Account Parties . Notwithstanding anything to the contrary set forth in this Agreement, including, without limitation, Section 2.3(a), (i) a Letter of Credit issued hereunder may contain a statement to the effect that such Letter of Credit is issued for the account of a Subsidiary of a Borrower, and (ii) the Existing Target Letters of Credit shall be issued for the account of the Acquired Company; provided that, notwithstanding such statement, such Borrower (which, in the case of the Existing Target Letters of Credit, shall be the Company) shall be the actual account party for all purposes of this Agreement for such Letter of Credit and such statement shall not affect such Borrower’s Reimbursement Obligations hereunder with respect to such Letter of Credit.

(j)      Cash Collateral . At any point in time in which there is a Defaulting Lender, any Issuing Lender may require the Borrowers to Cash Collateralize the LOC Obligations pursuant to Section 2.20.
 
(k)      Illegality, Etc. Notwithstanding anything to the contrary in this Agreement, no Issuing Lender shall be under any obligation to issue, renew, amend or extend any Letter of Credit if: (a) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain such Issuing Lender from issuing, renewing, amending or extending the Letter of Credit, or any law, rule, regulation or treaty applicable to such Issuing Lender or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such Issuing Lender shall prohibit, or request that such Issuing Lender refrain from, the issuance, renewal, amendment or extension of letters of credit generally or the Letter of Credit in particular; (b) such Issuing Lender does not as of the issuance date of the requested Letter of Credit issue, renew, amend or extend Letters of Credit in a requested Alternative Currency; or (c) any Lender is at that time a Defaulting Lender, unless such Issuing Lender has entered into arrangements, including the delivery of cash collateral, satisfactory to such Issuing Lender (in its sole discretion) with the applicable Borrower or such Lender to eliminate such Issuing Lender’s actual or potential fronting exposure (after giving effect to Section 2.21) with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued, renewed, amended or extended or such Letter of Credit and all other LOC Obligations as to which such Issuing Lender has actual or potential fronting exposure, as it may elect in its sole discretion.

Section 2.4      Swingline Loan Subfacility .
(a)      Swingline Commitment . During the Commitment Period, subject to the terms and conditions hereof, (x) the U.S. Swingline Lender, in its individual capacity, may, in its discretion and in reliance upon the agreements of the other Lenders set forth in this Section 2.4, make certain revolving credit loans to the Company (each a “ U.S. Swingline Loan ” and, collectively, the “ U.S. Swingline Loans ”) for the purposes hereinafter set forth and (y) the applicable Multicurrency Swingline Lender, in its individual capacity, may, in its discretion and in reliance upon the agreements of the other Lenders set forth in this Section 2.4, make certain revolving credit loans to a Foreign Borrower (each a “ Multicurrency Swingline Loan ” and, collectively, the “ Multicurrency Swingline


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Loans ” and, together with the U.S. Swingline Loans, the “ Swingline Loans ”) for the purposes hereinafter set forth; provided , however , (i) the aggregate principal amount of U.S. Swingline Loans outstanding at any time shall not exceed FIFTY MILLION DOLLARS ($50,000,000) (the “ U.S. Swingline Committed Amount ”), (ii) the aggregate principal amount of Multicurrency Swingline Loans outstanding at any time shall not exceed the Dollar Equivalent of FIFTY MILLION DOLLARS ($50,000,000) (the “ Multicurrency Swingline Committed Amount ”), (iii) the aggregate principal amount of Swingline Loans outstanding at any time shall not exceed the Swingline Sublimit, (iv) the sum of the aggregate principal amount of outstanding Revolving Loans plus outstanding Swingline Loans plus outstanding LOC Obligations plus outstanding Additional Alternative Currency Loans shall not exceed the Revolving Committed Amount then in effect, (v) no Swingline Lender shall be required to issue any Swingline Loans if, after giving effect to such Swingline Loans, the Swingline Exposure with respect to such Swingline Lender would exceed such Swingline Lender’s Swingline Commitment, (vi) the sum of the principal amount as to each Swingline Lender of its outstanding Revolving Loans plus its outstanding Swingline Loans plus its outstanding LOC Obligations plus its outstanding Additional Alternative Currency Loans shall not exceed such Swingline Lender’s Revolving Commitment then in effect, (vii) all Swingline Loans shall be denominated in Dollars or a Foreign Currency, and (viii) the aggregate principal amount of outstanding Revolving Loans denominated in a Foreign Currency, plus outstanding LOC Obligations with respect to Letters of Credit denominated in a Foreign Currency plus outstanding obligations with respect to Swingline Loans denominated in a Foreign Currency plus outstanding obligations with respect to Additional Alternative Currency Loans, shall not exceed the Foreign Currency Sublimit. Swingline Loans hereunder may be repaid and reborrowed in accordance with the provisions hereof.

(b)      Swingline Loan Borrowings .

(i)      Notice of Borrowing and Disbursement . Upon receiving a Notice of Borrowing from the applicable Borrower not later than 2:00 p.m. (9:00 a.m. London time, with respect to Swingline Loans to be denominated in a Foreign Currency) on any Business Day requesting that a Swingline Loan be made, the applicable Swingline Lender will make Swingline Loans available to the applicable Borrower on the same Business Day such request is received by the Administrative Agent and the applicable Swingline Lender. Each such Notice of Borrowing shall be irrevocable and shall specify (A) that a Swingline Loan is requested, (B) the aggregate principal amount to be borrowed, and (C) in the case of a Notice of Borrowing delivered by a Foreign Borrower, whether the borrowing shall consist of Swingline Loans denominated in Euros, British Pounds Sterling, an Alternative Currency or in Dollars. If the applicable Borrower shall fail to specify in any such Notice of Borrowing the currency of such borrowing, then such notice shall be deemed to be a request for Swingline Loans denominated in Dollars. Swingline Loan borrowings hereunder, if denominated in Dollars, shall be made in minimum amounts of $100,000 (or the remaining available amount of the Swingline Committed Amount if less) and in integral amounts of $25,000 in excess thereof. Swingline Loan borrowings hereunder, if denominated in Euros, shall be made in minimum amounts of €100,000 (or the remaining available amount of the Swingline Committed Amount if less) and in integral amounts of €25,000 in excess thereof. Swingline Loan borrowings hereunder, if denominated in British Pounds Sterling, shall be made in minimum amounts of ₤100,000 (or the remaining available amount of the Swingline Committed Amount if less) and in integral amounts of ₤25,000 in excess thereof. Swingline Loans denominated in an Alternative Currency shall be in a minimum amount of the Dollar Equivalent of $100,000 and in integral multiples of the Dollar Equivalent of $25,000. Each


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Notice of Borrowing with respect to Swingline Loans shall be delivered to the Administrative Agent and the applicable Swingline Lender.

(ii)      Repayment of Swingline Loans . Each Swingline Loan borrowing shall be due and payable on the earlier of (A) the Maturity Date and (B) seven (7) days following such borrowing in the currency in which such Swingline Loan is denominated. The applicable Swingline Lender may, at any time, in its sole discretion, by written notice to the Company and the Administrative Agent, demand repayment of its Swingline Loans by way of a Revolving Loan borrowing, in which case the applicable Borrower shall be deemed to have requested a Revolving Loan borrowing comprised entirely of Alternate Base Rate Loans in Dollars in the amount equal to the Dollar Equivalent ( provided that, such Dollar Equivalent will be determined in consultation with the applicable Swingline Lender) of such Swingline Loans; provided , that, in the following circumstances, any such demand shall also be deemed to have been given one (1) Business Day prior to each of (A) the Maturity Date, (B) the occurrence of any Bankruptcy Event, (C) the acceleration of any of the Obligations hereunder, whether on account of a Bankruptcy Event or any other Event of Default, and (D) the exercise of remedies in accordance with the provisions of Section 7.2 hereof (each such Revolving Loan borrowing made on account of any such deemed request therefor as provided herein being hereinafter referred to as “ Mandatory Swingline Borrowing ”). Each Revolving Lender hereby irrevocably agrees to make such Revolving Loans promptly upon any such request or deemed request on account of each Mandatory Swingline Borrowing in the amount and in the manner specified in the preceding sentence at or before 12:00 Noon on the Business Day next succeeding the date notice is received by the Revolving Lenders from the Administrative Agent notwithstanding (1) the amount of Mandatory Swingline Borrowing may not comply with the minimum amount for borrowings of Revolving Loans otherwise required hereunder, (2) whether any conditions specified in Section 4.2 are then satisfied, (3) whether a Default or an Event of Default then exists, (4) failure of any such request or deemed request for Revolving Loans to be made by the time otherwise required in Section 2.1(b)(i), (5) the date of such Mandatory Swingline Borrowing, or (6) any reduction in the Revolving Committed Amount or termination of the Revolving Commitments immediately prior to such Mandatory Swingline Borrowing or contemporaneously therewith. In the event that any Mandatory Swingline Borrowing cannot for any reason be made on the date otherwise required above (including, without limitation, as a result of the commencement of a proceeding under any Debtor Relief Law), then each Revolving Lender hereby agrees that it shall forthwith purchase (as of the date the Mandatory Swingline Borrowing would otherwise have occurred, but adjusted for any payments received from the applicable Borrower on or after such date and prior to such purchase) from the applicable Swingline Lender such Participation Interest in the outstanding Swingline Loans as shall be necessary to cause each such Revolving Lender to share in such Swingline Loans ratably based upon its respective Revolving Commitment Percentage (determined before giving effect to any termination of the Commitments pursuant to Section 7.2); provided that (x) all interest payable on the Swingline Loans shall be for the account of the applicable Swingline Lender until the date as of which the respective Participation Interest is purchased in cash, and (y) at the time any purchase of a Participation Interest in cash pursuant to this sentence is actually made, the purchasing Revolving Lender shall be required to pay to the applicable Swingline Lender interest on the principal amount of such Participation Interest purchased for each day from and including the day upon which the Mandatory Swingline Borrowing would otherwise have occurred to but excluding the date of payment for such Participation Interest, at the rate equal to, if paid within two (2)


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Business Days of the date of the Mandatory Swingline Borrowing, the Federal Funds Effective Rate, and thereafter at a rate equal to the Alternate Base Rate. The Borrowers shall have the right to repay the Swingline Loan in whole or in part from time to time in accordance with Section 2.7(a). The applicable Swingline Lender shall provide notice to the Administrative Agent of all repayments of Swingline Loans.

(c)      Interest on Swingline Loans . Subject to the provisions of Section 2.8, (i) Swingline Loans denominated in Dollars shall bear interest at a per annum rate equal to the Alternate Base Rate plus the Applicable Margin for Revolving Loans that are Alternate Base Rate Loans and (ii) Swingline Loans denominated in a Foreign Currency shall bear interest at a per annum rate equal to the Overnight LIBOR Rate. Interest on Swingline Loans shall be payable in arrears on each Interest Payment Date to the applicable Swingline Lender.

(d)      Swingline Loan Note; Covenant to Pay . The Swingline Loans shall be evidenced by this Agreement and, upon request of any Swingline Lender, by a duly executed promissory note of the applicable Borrower in favor of the applicable Swingline Lender in the principal amount of the applicable Swingline Commitment of such Swingline Lender and substantially in the form of Exhibit H-1 or Exhibit H-2 , as applicable. Each Borrower covenants and agrees to pay the Swingline Loans in accordance with the terms of this Agreement.

(e)      Cash Collateral . At any point in time in which there is a Defaulting Lender, any Swingline Lender may require the Borrowers to Cash Collateralize the outstanding Swingline Loans pursuant to Section 2.20.

Section 2.5      Fees .
(a)      Commitment Fee . Subject to Section 2.21, in consideration of the Revolving Commitments, the Company agrees to pay to the Administrative Agent, for the ratable benefit of the Revolving Lenders, a commitment fee (the “ Commitment Fee ”) in an amount equal to the Applicable Margin per annum on the average daily unused amount of the Revolving Committed Amount. The Commitment Fee shall be calculated quarterly in arrears. For purposes of computation of the Commitment Fee, LOC Obligations shall be considered usage of the Revolving Committed Amount, but Swingline Loans shall not be considered usage of the Revolving Committed Amount. The Commitment Fee shall be payable quarterly in arrears on the last Business Day of each calendar quarter and on the Maturity Date.

(b)      Letter of Credit Fees . Subject to Section 2.21, in consideration of the LOC Commitments, the Company agrees to pay to the Administrative Agent, for the ratable benefit of the Revolving Lenders, in Dollars, a fee (the “ Letter of Credit Fee ”) equal to the Applicable Margin for Revolving Loans that are LIBOR Rate Loans per annum on the Dollar Equivalent of the average daily maximum amount available to be drawn under each Letter of Credit from the date of issuance to the date of expiration or earlier termination. The Letter of Credit Fee shall be payable quarterly in arrears on the last Business Day of each calendar quarter and on the Maturity Date.

(c)      Issuing Lender Fees . In addition to the Letter of Credit Fees payable pursuant to subsection (b) hereof, the Company shall pay to each Issuing Lender for its own account without sharing by the other Lenders the reasonable and customary charges from time to time of such Issuing Lender with respect to the amendment, transfer, administration, cancellation and conversion of, and drawings under, such Letters of Credit (collectively, the “ Issuing Lender Fees ”). Each Issuing Lender


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may charge, and retain for its own account without sharing by the other Lenders, an additional facing fee (the “ Letter of Credit Facing Fee ”), in Dollars, of 0.125% per annum on the Dollar Equivalent of the average daily maximum amount available to be drawn under each such Letter of Credit issued by it. The Issuing Lender Fees and the Letter of Credit Facing Fee shall be payable quarterly in arrears on the last Business Day of each calendar quarter and on the Maturity Date.

(d)      Administrative Fee . The Company agrees to pay to the Administrative Agent the annual administrative fee as described in the Fee Letter.

Section 2.6      Commitment Reductions .
(a)      Voluntary Reductions . Each Borrower shall have the right to terminate or permanently reduce the unused portion of the Revolving Committed Amount at any time or from time to time upon not less than five (5) Business Days’ prior written notice to the Administrative Agent (which shall notify the Lenders thereof as soon as practicable) of each such termination or reduction, which notice shall specify the effective date thereof and the amount of any such reduction which shall be in a minimum amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof and shall be irrevocable and effective upon receipt by the Administrative Agent; provided that no such reduction or termination shall be permitted if after giving effect thereto, and to any prepayments of the Revolving Loans made on the effective date thereof, the sum of the aggregate principal amount of outstanding Revolving Loans plus outstanding Swingline Loans plus outstanding LOC Obligations would exceed the Revolving Committed Amount then in effect; provided that a notice of termination of the Revolving Commitments may state that such notice is conditioned upon the effectiveness of other credit facilities or the receipt of the proceeds from the issuance of other Indebtedness or the occurrence of some other identifiable event or condition, in which case such notice may be revoked by the Company (by notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied. Any reduction in the Revolving Committed Amount shall be applied to the Commitment of each Revolving Lender in according to its Revolving Commitment Percentage.

(b)      Foreign Currency Sublimit Amount . If the Revolving Committed Amount is reduced below the then current Foreign Currency Sublimit, the Foreign Currency Sublimit shall automatically be reduced by an amount such that the Foreign Currency Sublimit equals the Revolving Committed Amount.

(c)      LOC Committed Amount . If the Revolving Committed Amount is reduced below the then current LOC Committed Amount, the LOC Committed Amount shall automatically be reduced by an amount such that the LOC Committed Amount equals the Revolving Committed Amount.

(d)      Swingline Committed Amount . If the Revolving Committed Amount is reduced below the then current Swingline Committed Amount, the Swingline Committed Amount shall automatically be reduced by an amount such that the Swingline Committed Amount equals the Revolving Committed Amount.

(e)      Maturity Date . The Revolving Commitments, the Swingline Commitment and the LOC Commitment shall automatically terminate on the Maturity Date.




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Section 2.7      Prepayments .
(a)      Optional Prepayments and Repayments . Each Borrower shall have the right to prepay the Term Loans and repay the Revolving Loans and Swingline Loans in whole or in part from time to time; provided , however , that each partial prepayment or repayment of (i) Revolving Loans or Term Loans that are Alternate Base Rate Loans shall be in a minimum principal amount of $5,000,000 and integral multiples of $1,000,000 in excess thereof (or the remaining outstanding principal amount), (ii) Revolving Loans or Term Loans that are Eurocurrency Loans shall be in a minimum principal amount of (A) $5,000,000 and integral multiples of $1,000,000 in excess thereof (or the remaining outstanding principal amount) if denominated in Dollars, (B) €5,000,000 and integral multiples of €1,000,000 in excess thereof (or the remaining outstanding principal amount) if denominated in Euros, (C) ₤5,000,000 and integral multiples of ₤1,000,000 in excess thereof (or the remaining outstanding principal amount) if denominated in British Pounds Sterling or (D) the Dollar Equivalent of $5,000,000 and in integral multiples of the Dollar Equivalent of $1,000,000 in excess thereof (or the remaining outstanding principal amount) if denominated in an Alternative Currency and (iii) Swingline Loans shall be in a minimum principal amount of (w) $100,000 and integral multiples of $25,000 in excess thereof (or the remaining outstanding principal amount) if denominated in Dollars, (x) €100,000 and integral multiples of €25,000 in excess thereof (or the remaining outstanding principal amount) if denominated in Euros, (y) ₤100,000 and integral multiples of ₤25,000 in excess thereof (or the remaining outstanding principal amount) if denominated in British Pounds Sterling or (z) the Dollar Equivalent of $100,000 and in integral multiples of the Dollar Equivalent of $25,000 in excess thereof (or the remaining outstanding principal amount) if denominated in an Alternative Currency. The applicable Borrower shall give three Business Days’ irrevocable notice of prepayment in the case of Eurocurrency Loans and same-day irrevocable notice on any Business Day in the case of Alternate Base Rate Loans, to the Administrative Agent (which shall notify the Lenders thereof as soon as practicable); provided that, (1) if a notice of prepayment is given in connection with a conditional notice of termination of the Commitments as contemplated by Section 2.6(a), then such notice of prepayment may be revoked if such termination is revoked in accordance with Section 2.6(a) and (2) a notice of prepayment of Term Loans may state that such notice is conditioned upon the effectiveness of other credit facilities or the receipt of the proceeds from the issuance of other Indebtedness or the occurrence of some other identifiable event or condition, in which case such notice may be revoked by the Company (by notice to the Administrative Agent on or prior to the specified effective date) if such conditions are not satisfied. To the extent that the Company elects to prepay the Term Loans, amounts prepaid under this Section 2.7 shall be applied towards remaining amortization payments as specified by the Company ( provided that such prepayment must be applied to prepay the Term Loans of the Term Loan Lenders ratably). To the extent the applicable Borrower elects to repay the Revolving Loans, amounts prepaid under this Section 2.7 shall be applied to the Revolving Loans of the Revolving Lenders in accordance with their respective Revolving Commitment Percentages. All payment with respect to Term Loans shall be in Dollars. All payments with respect to Revolving Loans shall be in the currency in which such Revolving Loans are denominated. Prepayment of Revolving Loans denominated in Dollars shall be applied, first , to Revolving Loans that are Alternate Base Rate Loans, second , to Revolving Loans that are LIBOR Market Index Rate Loans and, third , to Revolving Loans that are LIBOR Rate Loans. All prepayments under this Section 2.7 shall be subject to Section 2.15, but otherwise without premium or penalty. Interest on the principal amount prepaid shall be payable on any date that a prepayment is made hereunder through the date of prepayment; provided that, in the case of a prepayment of Alternate Base Rate Loans that does not result in the repayment of all Loans, interest on the principal amount repaid may be made on the next occurring Interest Payment Date.


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(b)      Mandatory Prepayments .

(i)      Revolving Committed Amount . (x) If at any time after the Restatement Effective Date, the sum of the aggregate principal amount of outstanding Revolving Loans plus outstanding Swingline Loans plus outstanding LOC Obligations plus outstanding Additional Alternative Currency Loans shall exceed the Revolving Committed Amount (other than as a result of currency fluctuations), the Company or the applicable Borrower shall promptly prepay the Revolving Loans and Swingline Loans and Additional Alternative Currency Loans and (after all Revolving Loans and Swingline Loans and Additional Alternative Currency Loans have been repaid) Cash Collateralize the LOC Obligations in an amount sufficient to eliminate such excess (such prepayment to be applied as set forth in clause (v) below) and (y) if, on any Revaluation Date, (A) the sum of the aggregate principal amount of outstanding Revolving Loans, plus the outstanding LOC Obligations plus outstanding Obligations with respect to Swingline Loans plus outstanding Additional Alternative Currency Loans shall exceed 105% of the Revolving Committed Amount (in each case, based on the Dollar Equivalent of such amounts as of such Revaluation Date), or (B) the outstanding Revolving Loans denominated in a Foreign Currency, plus the outstanding LOC Obligations with respect to Letters of Credit denominated in a Foreign Currency plus outstanding Obligations with respect to Swingline Loans denominated in a Foreign Currency plus outstanding Additional Alternative Currency Loans shall exceed 105% of the Foreign Currency Sublimit (in each case, based on the Dollar Equivalent of such amounts as of such Revaluation Date), the Borrowers shall promptly prepay such Loans and (after all such Loans have been repaid) Cash Collateralize such LOC Obligations in an amount sufficient to eliminate any such excess with respect to clause (A) or (B) above (such prepayment to be applied as set forth in clause (v) below).

(ii)      Debt Issuance . No later than three (3) Business Days following any Debt Issuance by Company or any of its Subsidiaries after the Restatement Effective Date, the Company shall make prepayments in accordance with clause (v) below in an aggregate amount equal to 100% of the Net Cash Proceeds of such Debt Issuance.

(iii)      Asset Sales . No later than ten (10) Business Days following the receipt of any Net Cash Proceeds of any Asset Sale by Company or any of its Subsidiaries after the Restatement Effective Date, the Company shall make prepayments in accordance with clause (v) below in an aggregate amount equal to 100% of such Net Cash Proceeds; provided that, so long as no Default or Event of Default shall have occurred and be continuing, no such prepayment shall be required with respect to such Net Cash Proceeds in such fiscal year up to $25,000,000; provided , further , that, so long as no Default or Event of Default shall have occurred and be continuing, no such prepayment shall be required if on or prior to such date, the Company shall have given written notice to the Administrative Agent of its intention to reinvest all or a portion of such Net Cash Proceeds, in which case, the Company may reinvest all or any portion of such Net Cash Proceeds (i) in the case of Asset Sales by a U.S. Credit Party, in the acquisition, improvement or maintenance of assets useful in the operations of the U.S. Credit Parties (including, without limitation, Permitted Acquisitions) and (ii) in the case of Asset Sales by other Group Members, in the acquisition, improvement or maintenance of assets useful in the operations of Group Members (including, without limitation, Permitted Acquisitions), in either case, within (x) twelve (12) months following receipt of such Net Cash Proceeds, or (y) if the Company enters into a contract to reinvest such Net Cash


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Proceeds within such twelve (12)-month period following receipt thereof, the later of six (6) months following the date such contract is entered into and the termination of such twelve (12)-month period; provided , however , that, if any Net Cash Proceeds are no longer intended to be so reinvested at any time after delivery of a notice of reinvestment election or are not so reinvested during such twelve (12)-month period (or six (6)-month period, as applicable), an amount equal to any such Net Cash Proceeds shall be promptly applied to the prepayment of the Term Loans as set forth in this Section 2.7.

(iv)      Insurance Condemnation Proceeds . No later than ten (10) Business Days following the receipt of any Net Cash Proceeds of any Casualty Event by Company or any of its Subsidiaries after the Restatement Effective Date, the Company shall make prepayments in accordance with clause (v) below in an aggregate amount equal to 100% of the Net Cash Proceeds of such Casualty Event; provided that, so long as no Default or Event of Default shall have occurred and be continuing, no such prepayment shall be required if, on or prior to such date, the Company shall have given written notice to the Administrative Agent of its intention to reinvest all or a portion of such Net Cash Proceeds (i) in the case of Casualty Events impacting a U.S. Credit Party, in the acquisition, improvement or maintenance of assets useful in the operations of the U.S. Credit Parties (including, without limitation, Permitted Acquisitions) and (ii) in the case of Casualty Events impacting other Group Members, in the acquisition, improvement or maintenance of assets useful in the operations of Group Members (including, without limitation, Permitted Acquisitions), in either case, within (x) twelve (12) months following receipt of such Net Cash Proceeds, or (y) if a Group Member enters into a contract to reinvest such Net Cash Proceeds within such twelve (12)-month period following receipt thereof, the later of six (6) months following the date such contract is entered into and the termination of such twelve (12)-month period; provided , however , that, if any Net Cash Proceeds are no longer intended to be so reinvested at any time after delivery of a notice of reinvestment election or are not so reinvested during such twelve (12)-month period (or six (6)-month period, as applicable), an amount equal to any such Net Cash Proceeds shall be immediately applied to the prepayment of the Term Loans as set forth in this Section 2.7.

(v)      Payment of Permitted Unsecured Indebtedness and 2017 Senior Notes . To the extent that any Group Member would be required to apply any Net Cash Proceeds (or an amount equal to any Net Cash Proceeds) of any Asset Sale or Casualty Event to the repayment, redemption, defeasance, discharge, purchase or other acquisition of Permitted Unsecured Indebtedness or the 2017 Senior Notes (or to make an offer to repurchase such Indebtedness), the Company shall, prior to being required to do so, apply such Net Cash Proceeds to make a prepayment of Loans in an amount equal to such Net Cash Proceeds.

(vi)      Application of Mandatory Prepayments . All amounts required to be paid pursuant to this Section 2.7 shall be applied as follows: (A) with respect to all amounts prepaid pursuant to Section 2.7(b)(i), first to the outstanding Swingline Loans, second to the outstanding Revolving Loans and third to Cash Collateralize the LOC Obligations and (B) with respect to all amounts prepaid pursuant to Sections 2.7(b)(ii), (iii), (iv) or (v), first to the Term Loan and the Incremental Term Loan (ratably to the remaining amortization payments thereof), without the application of any prepayment penalty or premium, second to the Swingline Loans (without a simultaneous corresponding reduction of the Swingline Committed Amount) and third ratably to the Revolving Loans; provided that such prepayment of Revolving Loans in the case of Section 2.7(b)(i), (ii), (iii) and (iv) shall be


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made without a simultaneous corresponding reduction of the Revolving Committed Amount and, in the case of all amounts prepaid pursuant to Sections 2.7(b)(v), shall be made with a simultaneous corresponding reduction in the Revolving Committed Amount. Within the parameters of the applications set forth above, prepayments of Loans denominated in Dollars shall be applied, first , to Alternate Base Rate Loans, second , to LIBOR Market Index Rate Loans and third , to LIBOR Rate Loans in direct order of Interest Period maturities. All prepayments under this Section 2.7 shall be subject to Section 2.15 and be accompanied by interest on the principal amount prepaid through the date of prepayment, but otherwise without premium or penalty.

Section 2.8      Default Rate and Payment Dates .
(a)      If all or a portion of the principal amount of any Loan which is a LIBOR Market Index Rate Loan or a LIBOR Rate Loan denominated in Dollars shall not be paid when due or continued or maintained as a LIBOR Rate Loan or LIBOR Market Index Rate Loan, as applicable, in accordance with the provisions of Section 2.9 (whether at the stated maturity, by acceleration or otherwise), such overdue principal amount of such Loan shall be converted to an Alternate Base Rate Loan at the end of the Interest Period applicable thereto.

(b)      Upon the occurrence and during the continuance of a (i) Bankruptcy Event or a Payment Event of Default, the principal of and, to the extent permitted by law, interest on the Loans and any other amounts owing hereunder or under the other Credit Documents shall automatically bear interest at a rate per annum which is equal to the Default Rate and (ii) any other Event of Default hereunder, at the election of the Required Lenders (or the Administrative Agent if directed by the Required Lenders), the principal of and, to the extent permitted by law, interest on the Loans and any other amounts owing hereunder or under the other Credit Documents shall automatically bear interest, at a per annum rate which is equal to the Default Rate, in each case from the date of such Event of Default until such Event of Default is waived in accordance with Section 10.1. Any default interest owing under this Section 2.8(b) shall be due and payable on the earlier to occur of (x) demand by the Administrative Agent (which demand the Administrative Agent shall make if directed by the Required Lenders) and (y) the Maturity Date.

(c)      Interest on each Loan shall be payable in arrears on each Interest Payment Date; provided that interest accruing pursuant to paragraph (b) of this Section 2.8 shall be payable from time to time on demand.

Section 2.9      Conversion Options .
(a)      Each Borrower may, in the case of Revolving Loans denominated in Dollars and the Term Loans, elect from time to time to convert Alternate Base Rate Loans to LIBOR Market Index Rate Loans or LIBOR Rate Loans or to continue LIBOR Rate Loans, by delivering a Notice of Conversion/Continuation to the Administrative Agent at least three (3) Business Days prior to the proposed date of conversion or continuation. In addition, each Borrower may elect from time to time to convert all or any portion of a LIBOR Market Index Rate Loan or a LIBOR Rate Loan to an Alternate Base Rate Loan, convert a LIBOR Market Index Rate Loan to a LIBOR Rate Loan or convert a LIBOR Rate Loan to a LIBOR Market Index Rate Loan by giving the Administrative Agent irrevocable written notice thereof by 2:00 p.m. one (1) Business Day prior to the proposed date of conversion. If the date upon which an Alternate Base Rate Loan is to be converted to a LIBOR Market Index Rate Loan or a LIBOR Rate Loan is not a Business Day, then such conversion


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shall be made on the next succeeding Business Day and during such period prior to such succeeding Business Day such Loan shall bear interest as if it were an Alternate Base Rate Loan. If the date upon which a LIBOR Market Index Rate Loan is to be converted to a LIBOR Rate Loan or an Alternate Base Rate Loan is not a Business Day, then such conversion shall be made on the next succeeding Business Day and during such period prior to such succeeding Business Day such Loan shall bear interest as if it were a LIBOR Market Index Rate Loan, and LIBOR Rate Loans may only be converted to Alternate Base Rate Loans on the last day of the applicable Interest Period. If the date upon which a LIBOR Rate Loan is to be converted to a LIBOR Market Index Rate Loan or an Alternate Base Rate Loan is not a Business Day, then such conversion shall be made on the next succeeding Business Day and during the period from such last day of an Interest Period to such succeeding Business Day such Loan shall bear interest as if it were a LIBOR Market Index Rate Loan or an Alternate Base Rate Loan, as applicable. All or any part of outstanding Alternate Base Rate Loans may be converted as provided herein; provided that (i) no Loan may be converted into a LIBOR Market Index Rate Loan or a LIBOR Rate Loan when any Default or Event of Default has occurred and is continuing and (ii) partial conversions shall be in an aggregate principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof. All or any part of outstanding LIBOR Market Index Rate Loans and LIBOR Rate Loans may be converted as provided herein; provided that partial conversions shall be in an aggregate principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof.

(b)      (i) Each Revolving Loan denominated in Euros shall be a EURIBOR Market Index Rate Loan or a EURIBOR Rate Loan, and (ii) each Revolving Loan denominated in British Pounds Sterling or an Alternative Currency shall be a LIBOR Market Index Rate Loan or a LIBOR Rate Loan, in each case, with an Interest Period (other than in the case of LIBOR Market Index Rate Loans or EURIBOR Market Index Rate Loans) as specified in the applicable Notice of Conversion/Continuation, as provided for in Section 2.9(c). Loans denominated in a Foreign Currency or an Additional Alternative Currency may not be converted to a different Type.

(c)      Any Eurocurrency Loans may be continued as such upon the expiration of an Interest Period with respect thereto by compliance by the applicable Borrower with the notice provisions contained in Section 2.9(a); provided , that no Eurocurrency Loan may be continued as such when any Default or Event of Default has occurred and is continuing, in which case, (i) any such Loan denominated in Dollars shall be automatically converted to an Alternate Base Rate Loan at the end of the applicable Interest Period with respect thereto, and (ii) any such loan denominated in a Foreign Currency shall be automatically converted into Loans with an Interest Period of one month at the end of the applicable Interest Period with respect thereto. If the applicable Borrower shall fail to give timely notice of an election to continue a Eurocurrency Loan, or the continuation of Eurocurrency Loans is not permitted hereunder, (i) any such Loans denominated in Dollars shall be automatically converted to Alternate Base Rate Loans at the end of the applicable Interest Period with respect thereto, and (ii) any such Loan denominated in a Foreign Currency or an Additional Alternative Currency shall be automatically converted into Loans with an Interest Period of one (1) month at the end of the applicable Interest Period with respect thereto.

Section 2.10      Computation of Interest and Fees; Usury .
(a)      Interest payable hereunder with respect to any Alternate Base Rate Loan based on the Prime Rate or any LIBOR Market Index Rate Loan or LIBOR Rate Loan made in British Pounds Sterling or an Alternative Currency shall be calculated on the basis of a year of 365 days (or 366 days, as applicable) for the actual days elapsed. All other fees, interest and all other amounts payable


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hereunder shall be calculated on the basis of a 360-day year for the actual days elapsed. The Administrative Agent shall as soon as practicable notify the Company and the Lenders of each determination of a LIBOR Rate and EURIBOR Rate on the Business Day of the determination thereof (and, to the extent LIBOR Market Index Rate Loans and/or EURIBOR Rate Loans are outstanding on such Business Day, any change in a LIBOR Market Index Rate or the EURIBOR Market Index Rate, as applicable). Any change in the interest rate on a Loan resulting from a change in the Alternate Base Rate shall become effective as of the opening of business on the day on which such change in the Alternate Base Rate shall become effective. The Administrative Agent shall as soon as practicable notify the Company and the Lenders of the effective date and the amount of each such change.

(b)      Each determination of an interest rate by the Administrative Agent pursuant to any provision of this Agreement shall be conclusive and binding on the Borrowers and the Lenders in the absence of manifest error. The Administrative Agent shall, at the request of the Company, deliver to the Company a statement showing the computations used by the Administrative Agent in determining any interest rate.

(c)      It is the intent of the Lenders and the Credit Parties to conform to and contract in strict compliance with applicable usury law from time to time in effect. All agreements between the Lenders and the Credit Parties are hereby limited by the provisions of this subsection which shall override and control all such agreements, whether now existing or hereafter arising and whether written or oral. In no way, nor in any event or contingency (including, but not limited to, prepayment or acceleration of the maturity of any Obligation), shall the interest taken, reserved, contracted for, charged, or received under this Agreement, under the Notes or otherwise, exceed the maximum nonusurious amount permissible under applicable law. If, from any possible construction of any of the Credit Documents or any other document, interest would otherwise be payable in excess of the maximum nonusurious amount, any such construction shall be subject to the provisions of this paragraph (c) and such interest shall be automatically reduced to the maximum nonusurious amount permitted under applicable law, without the necessity of execution of any amendment or new document. If any Lender shall ever receive anything of value which is characterized as interest on the Loans under applicable law and which would, apart from this provision, be in excess of the maximum nonusurious amount, an amount equal to the amount which would have been excessive interest shall, without penalty, be applied to the reduction of the principal amount owing on the Loans and not to the payment of interest, or refunded to the applicable Borrower or the other payor thereof if and to the extent such amount which would have been excessive exceeds such unpaid principal amount of the Loans. The right to demand payment of the Loans or any other Indebtedness evidenced by any of the Credit Documents does not include the right to receive any interest which has not otherwise accrued on the date of such demand, and the Lenders do not intend to charge or receive any unearned interest in the event of such demand. All interest paid or agreed to be paid to the Lenders with respect to the Loans shall, to the extent permitted by applicable law, be amortized, prorated, allocated, and spread throughout the full stated term (including any renewal or extension) of the Loans so that the amount of interest on account of such Indebtedness does not exceed the maximum nonusurious amount permitted by applicable law.

Section 2.11      Pro Rata Treatment and Payments .
(a)      Allocation of Payments Prior to Exercise of Remedies . Each borrowing of Revolving Loans and any reduction of the Revolving Commitments shall be made pro rata according to the respective Revolving Commitment Percentages of the Revolving Lenders. Unless otherwise


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required by the terms of this Agreement, each payment under this Agreement shall be applied, first , to any fees then due and owing by the Borrowers pursuant to Section 2.5, second , to interest then due and owing hereunder of the Borrowers and, third , to principal then due and owing hereunder and under this Agreement of the Borrowers. Each payment on account of any fees pursuant to Section 2.5 shall be made pro rata in accordance with the respective amounts due and owing (except as to the Letter of Credit Facing Fees and the Issuing Lender Fees which shall be paid to the applicable Issuing Lender and fees payable under the Fee Letter). Each optional repayment by a Borrower on account of principal of and interest on the Revolving Loans and on the Term Loans, as applicable, shall be applied to such Loans, as applicable, on a pro rata basis and, to the extent applicable, in accordance with the terms of Section 2.7(a) hereof. Each mandatory prepayment on account of principal of the Loans shall be applied to such Loans, as applicable, on a pro rata basis and, to the extent applicable, in accordance with Section 2.7(b). All payments (including prepayments) to be made by any Borrower on account of principal, interest and fees shall be made without defense, set-off or counterclaim and shall be made to the Administrative Agent for the account of the Lenders at the Administrative Agent’s office specified on Section 10.2 in immediately available funds and (i) in the case of Loans or other amounts denominated in Dollars, shall be made in Dollars not later than 1:00 p.m. on the date when due and (ii) in the case of Loans or other amounts denominated in a Foreign Currency, unless otherwise specified herein, shall be made in such Foreign Currency not later than the Applicable Time specified by the Administrative Agent on the date when due. The Administrative Agent shall distribute such payments to the Lenders entitled thereto promptly upon receipt in like funds as received. If any payment hereunder (other than payments on the Eurocurrency Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day, and, with respect to payments of principal, interest thereon shall be payable at the then applicable rate during such extension. If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business Day, such payment date shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day.

(b)      Allocation of Payments After Exercise of Remedies .

(i)      Notwithstanding any other provisions of this Agreement to the contrary, after the exercise of remedies (other than the application of default interest pursuant to Section 2.8) by the Administrative Agent or the Lenders pursuant to Section 7.2 (or after the Commitments shall automatically terminate and the Loans (with accrued interest thereon) and all other amounts under the Credit Documents (including, without limitation, the maximum amount of all contingent liabilities under Letters of Credit) shall automatically become due and payable in accordance with the terms of such Section), all amounts collected or received by the Administrative Agent or any Lender on account of the U.S. Obligations or any other amounts outstanding under any of the Credit Documents with respect to the Company or any Company Guarantors or in respect of the Collateral shall be paid over or delivered as follows (irrespective of whether the following costs, expenses, fees, interest, premiums, scheduled periodic payments or U.S. Obligations are allowed, permitted or recognized as a claim in any proceeding resulting from the occurrence of a Bankruptcy Event):

FIRST, to the payment of all reasonable out‑of‑pocket costs and expenses (including, without limitation, reasonable attorneys’ fees and expenses) of the


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Administrative Agent in connection with enforcing the rights of the Lenders under the Credit Documents;

SECOND, to the payment of any fees, indemnification obligations or reimbursement obligations owed to the Administrative Agent and the Issuing Lenders;

THIRD, to the payment of (a) all reasonable out‑of‑pocket costs and expenses (including, without limitation, reasonable attorneys’ fees and expenses) of each of the Lenders in connection with enforcing its rights under the Credit Documents or otherwise with respect to the U.S. Obligations owing to such Lender and (b) all documentary and similar taxes and charges in respect of the Credit Documents;

FOURTH, to the payment of all of the U.S. Obligations consisting of accrued fees and interest, and including, with respect to any Hedging Agreement or Treasury Services Agreements constituting U.S. Obligations, any fees, premiums and scheduled periodic payments due under such Hedging Agreements and Treasury Services Agreements and any interest accrued thereon (in each case, including, but not limited to, any interest accruing after the filing of a petition of bankruptcy under any Debtor Relief Law, regardless of whether such interest is an allowed claim under any Debtor Relief Law);

FIFTH, to the payment of the outstanding principal amount of the U.S. Obligations and the payment or cash collateralization of the outstanding LOC Obligations of the Company, and including with respect to any Hedging Agreement or Treasury Services Agreements constituting U.S. Obligations, any breakage, termination or other payments due under such Hedging Agreements and Treasury Services Agreements and any interest accrued thereon;

SIXTH, to all other U.S. Obligations and other obligations which shall have become due and payable under the Credit Documents or otherwise and not repaid pursuant to clauses “FIRST” through “FIFTH” above; and

SEVENTH, after all U.S. Obligations have been paid in full, to the payment of all remaining Obligations in the manner provided in Section 2.11(b)(ii) (after giving effect to the prior application of any amounts recovered from the Foreign Borrowers and their respective Foreign Borrower Guarantors to the payment of such Obligations).

In carrying out the foregoing, (a) amounts received shall be applied in the numerical order provided until exhausted prior to application to the next succeeding category; (b) each of the Lenders and any Bank Product Provider shall receive an amount equal to its pro rata share (based on the proportion that the then outstanding Loans and LOC Obligations held by such Lender or the outstanding obligations payable to such Bank Product Provider bears to the aggregate then outstanding Loans and LOC Obligations and obligations under Hedging Agreements and Treasury Services Agreements) of amounts available to be applied pursuant to clauses “THIRD”, “FOURTH”, “FIFTH” and “SIXTH” above; (c) to the extent that any amounts available for distribution pursuant to clause “FIFTH” above are attributable to the issued but undrawn amount of outstanding Letters of Credit, such amounts shall be held by the Administrative Agent in a cash collateral account and applied (x)  first , to reimburse the Issuing Lenders from time to time for any drawings under such Letters of Credit and (y)  second , following the expiration of all Letters of Credit, to all other obligations of the types described in clauses “FIFTH” and “SIXTH” above in the manner provided


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in this Section 2.11(b)(i); and (d) Excluded Swap Obligations with respect to any Guarantor shall not be paid with amounts received from such Guarantor, but appropriate adjustments shall be made with respect to payments from the other Credit Parties to preserve the allocation to Obligations otherwise set forth above in this Section.

(ii)      Notwithstanding any other provisions of this Agreement to the contrary, after the exercise of remedies (other than the application of default interest pursuant to Section 2.8) by the Administrative Agent or the Lenders pursuant to Section 7.2 (or after the Commitments shall automatically terminate and the Loans (with accrued interest thereon) and all other amounts under the Credit Documents (including, without limitation, the maximum amount of all contingent liabilities under Letters of Credit) shall automatically become due and payable in accordance with the terms of such Section), all amounts collected or received by the Administrative Agent or any Lender on account of Foreign Obligations or any other amounts outstanding under any of the Credit Documents with respect any Foreign Borrower or its Foreign Borrower Guarantors shall be paid over or delivered as follows (irrespective of whether the following costs, expenses, fees, interest, premiums, scheduled periodic payments or Foreign Obligations are allowed, permitted or recognized as a claim in any proceeding resulting from the occurrence of a Bankruptcy Event):

FIRST, to the payment of all reasonable out‑of‑pocket costs and expenses (including, without limitation, reasonable attorneys’ fees) of the Administrative Agent in connection with enforcing the rights of the Lenders under the Credit Documents with respect to the Foreign Obligations;

SECOND, to the payment of any fees, indemnification obligations or reimbursement obligations owed to the Administrative Agent and the Issuing Lenders incurred in connection with the Foreign Obligations;

THIRD, to the payment of (a) all reasonable out‑of‑pocket costs and expenses (including, without limitation, reasonable attorneys’ fees and expenses) of each of the Lenders in connection with enforcing its rights under the Credit Documents or otherwise with respect to the Foreign Obligations owing to such Lender and (b) all documentary and similar taxes and charges in respect of the Credit Documents;

FOURTH, to the payment of all of the Foreign Obligations consisting of accrued fees and interest, and including, with respect to any Hedging Agreement or Treasury Services Agreements constituting Foreign Obligations, any fees, premiums and scheduled periodic payments due under such Hedging Agreements and Treasury Services Agreements and any interest accrued thereon (in each case, including, but not limited to, any interest accruing after the filing of a petition of bankruptcy under any Debtor Relief Law, regardless of whether such interest is an allowed claim under any Debtor Relief Law);

FIFTH, to the payment of the outstanding principal amount of the Foreign Obligations and the payment or cash collateralization of the outstanding LOC Obligations of any Foreign Borrower, and including with respect to any Hedging Agreement or Treasury Services Agreements constituting Foreign Obligations, any breakage, termination or other payments due under such Hedging Agreements and Treasury Services Agreements and any interest accrued thereon;



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SIXTH, to all other Foreign Obligations and other obligations which shall have become due and payable under the Credit Documents or otherwise and not repaid pursuant to clauses “FIRST” through “FIFTH” above; and

SEVENTH, to the payment of the surplus, if any, to whoever may be lawfully entitled to receive such surplus.

In carrying out the foregoing, (a) amounts received shall be applied in the numerical order provided until exhausted prior to application to the next succeeding category; (b) each of the Lenders and any Bank Product Provider shall receive an amount equal to its pro rata share (based on the proportion that the then outstanding Loans and LOC Obligations held by such Lender or the outstanding obligations payable to such Bank Product Provider bears to the aggregate then outstanding Loans and LOC Obligations and obligations under Hedging Agreements and Treasury Services Agreements) of amounts available to be applied pursuant to clauses “THIRD”, “FOURTH”, “FIFTH” and “SIXTH” above; (c) to the extent that any amounts available for distribution pursuant to clause “FIFTH” above are attributable to the issued but undrawn amount of outstanding Letters of Credit, such amounts shall be held by the Administrative Agent in a cash collateral account and applied (x)  first , to reimburse the Issuing Lenders from time to time for any drawings under such Letters of Credit and (y)  second , following the expiration of all Letters of Credit, to all other obligations of the types described in clauses “FIFTH” and “SIXTH” above in the manner provided in this Section 2.11(b)(ii); and (d) Excluded Swap Obligations with respect to any Guarantor shall not be paid with amounts received from such Guarantor, but appropriate adjustments shall be made with respect to payments from the other Credit Parties to preserve the allocation to Obligations otherwise set forth above in this Section.

Section 2.12      Non-Receipt of Funds by the Administrative Agent .
(a)      Funding by Lenders; Presumption by Administrative Agent . Unless the Administrative Agent shall have received written notice from a Lender prior to the proposed date of any Extension of Credit that such Lender will not make available to the Administrative Agent such Lender’s share of such Extension of Credit, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with this Agreement and may, in reliance upon such assumption, make available to the applicable Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Extension of Credit available to the Administrative Agent, then the applicable Lender and the applicable Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount with interest thereon, for each day from and including the date such amount is made available to the applicable Borrower to but excluding the date of payment to the Administrative Agent, at (i) in the case of a payment to be made by such Lender, the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation and (ii) in the case of a payment to be made by any Borrower, the interest rate applicable to Alternate Base Rate Loans. If such Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to such Borrower the amount of such interest paid by such Borrower for such period. If such Lender pays its share of the applicable Extension of Credit to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Extension of Credit. Any payment by any Borrower shall be without prejudice to any claim such Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.



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(b)      Payments by Borrowers; Presumptions by Administrative Agent . Unless the Administrative Agent shall have received notice from the applicable Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or any Issuing Lender hereunder that the applicable Borrower will not make such payment, the Administrative Agent may assume that the applicable Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the applicable Issuing Lender, as the case may be, the amount due. In such event, if the applicable Borrower has not in fact made such payment, then each of the Lenders or the applicable Issuing Lender, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or such Issuing Lender, with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.

A notice of the Administrative Agent to any Lender or to the applicable Borrower with respect to any amount owing under subsections (a) and (b) of this Section 2.12 shall be conclusive, absent manifest error.

(c)      Failure to Satisfy Conditions Precedent . If any Lender makes available to the Administrative Agent funds for any Loan to be made by such Lender as provided in the foregoing provisions of this Article II, and such funds are not made available to the applicable Borrower by the Administrative Agent because the conditions to the applicable Extension of Credit set forth in Article IV (as modified, if applicable, pursuant to Section 1.8) are not satisfied or waived in accordance with the terms thereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.

(d)      Obligations of Lenders Several . The obligations of the Lenders hereunder to make Revolving Loans and Term Loans, to fund participations in Letters of Credit and Swingline Loans and to make payments pursuant to Section 10.5(c) are several and not joint. The failure of any Lender to make any Loan, to fund any such participation or to make any such payment under Section 10.5(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, to purchase its participation or to make its payment under Section 10.5(c).

(e)      Funding Source . Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.

Section 2.13      Inability to Determine Interest Rate .
(a)      Loans Denominated in Dollars . Notwithstanding any other provision of this Agreement, unless and until a Replacement Rate is implemented in accordance with clause (c) below, if (x) the Administrative Agent shall reasonably determine (which determination shall be conclusive and binding absent manifest error) that, by reason of circumstances affecting the relevant market, reasonable and adequate means do not exist for ascertaining (i) the LIBOR Market Index Rate or (ii) the LIBOR Rate for any particular Interest Period, or (y) the Required Lenders shall reasonably determine (which determination shall be conclusive and binding absent manifest error) that the LIBOR Market Index Rate or the LIBOR Rate does not adequately and fairly reflect the cost to such Lenders of funding LIBOR Market Index Rate Loans or LIBOR Rate Loans denominated in Dollars


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that any Borrower has requested be outstanding as (i) a LIBOR Market Index Rate Tranche or (ii) a LIBOR Tranche during such Interest Period, as applicable, the Administrative Agent shall forthwith give telephone notice of such determination, confirmed in writing, to such Borrower and the Lenders at least two (2) Business Days prior to the first day of such Interest Period (in the case of Loans at the LIBOR Rate) or at any time LIBOR Market Index Rate Loans denominated in Dollars have been requested or are in effect (in the case of LIBOR Market Index Rate Loans). Unless the applicable Borrower shall have notified the Administrative Agent upon receipt of such telephone notice that it wishes to rescind or modify its request regarding such LIBOR Market Index Rate Loans or LIBOR Rate Loans or a Replacement Rate is implemented in accordance with clause (c) below, any Loans that were requested to be made as such LIBOR Market Index Rate Loans or LIBOR Rate Loans denominated in Dollars shall be made as Alternate Base Rate Loans and any Loans that were requested to be converted into or continued as LIBOR Market Index Rate Loans or LIBOR Rate Loans denominated in Dollars shall remain as or be converted into Alternate Base Rate Loans. Until any such notice has been withdrawn by the Administrative Agent or a Replacement Rate is implemented in accordance with clause (c) below, no further Loans shall be made as, continued as, or converted into, Eurocurrency Loans denominated in Dollars for such Interest Periods or to the extent so affected.

(b)      Loans Denominated in a Foreign Currency . Notwithstanding any other provision of this Agreement, unless and until a Replacement Rate is implemented in accordance with clause (c) below, if (x) the Administrative Agent shall reasonably determine (which determination shall be conclusive and binding absent manifest error) that, by reason of circumstances affecting the relevant market, reasonable and adequate means do not exist for ascertaining (i) the EURIBOR Market Index Rate or the LIBOR Market Index Rate or (ii) the LIBOR Rate or the EURIBOR Rate for any applicable Interest Period, as applicable, or (y) Lenders whose Revolving Commitment Percentages are at least 30.0% in aggregate (the “ Required Foreign Currency Lenders ”) shall determine (which determination shall be conclusive and binding absent manifest error) that (i) the EURIBOR Market Index Rate, the EURIBOR Rate, the LIBOR Market Index Rate or the LIBOR Rate does not adequately and fairly reflect the cost to such Lenders of funding EURIBOR Market Index Rate Loans, EURIBOR Rate Loans, LIBOR Market Index Rate Loans or LIBOR Rate Loans, as applicable, denominated in a Foreign Currency or an Additional Alternative Currency, that any Borrower has requested be outstanding as a EURIBOR Market Index Rate Tranche, EURIBOR Tranche, LIBOR Market Index Rate Tranche or LIBOR Tranche, as applicable, or (ii) the cost to it of funding its Revolving Commitment Percentage of such Loan from whatever source it may reasonably select would be in excess of (i) the EURIBOR Market Index Rate or LIBOR Market Index Rate or (ii) the EURIBOR Rate or LIBOR Rate, in either case during such Interest Period, as applicable, the Administrative Agent shall forthwith give telephone notice of such determination, confirmed in writing, to such Borrower and the Lenders at least two (2) Business Days prior to the first day of such Interest Period (in the case of Loans at the EURIBOR Rate or the LIBOR Rate) or at any time LIBOR Market Index Rate Loans or EURIBOR Market Index Rate Loans denominated in the applicable Foreign Currency or Additional Alternative Currency have been requested or are in effect (in the case of LIBOR Market Index Rate Loans or EURIBOR Market Index Rate Loans). Unless the applicable Borrower shall have notified the Administrative Agent upon receipt of such telephone notice that it wishes to rescind or modify its request regarding such EURIBOR Market Index Rate Loans, EURIBOR Rate Loans, LIBOR Market Index Rate Loans or LIBOR Rate Loans denominated in a Foreign Currency or an Additional Alternative Currency, as applicable, or a Replacement Rate is implemented in accordance with clause (c) below, (A) any Notice of Borrowing with respect to such EURIBOR Market Index Rate Loans, EURIBOR Rate Loans, LIBOR Market Index Rate Loans or LIBOR Rate Loans, as applicable, shall not be effective, (B) any Notice of Conversion/Continuation with respect to continuations of Loans to be denominated in the applicable


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Foreign Currency or Additional Alternative Currency delivered pursuant to Section 2.9(a) shall be ineffective, and (C) any outstanding and affected Eurocurrency Loans denominated in the applicable Foreign Currency or Additional Alternative Currency of any Lender shall bear interest at an interest rate per annum (rounded upward, if necessary, to the nearest 1/100th of 1%) equal to the sum of (x) the rate notified by such Lender to the Administrative Agent as soon as practicable and in any event before interest is due to be paid in respect of that Interest Period (in the case of LIBOR Rate Loans and EURIBOR Rate Loans) or the next Interest Payment Date applicable to such Loan, to be that which expresses an interest rate per annum (rounded upward, if necessary, to the nearest 1/100th of 1.0%) equal to the cost to that Lender of funding such Loans from whatever source it may reasonably select, plus (y) the Applicable Margin with respect to Eurocurrency Loans. Until any such notice has been withdrawn by the Administrative Agent or a Replacement Rate with respect to such Foreign Currency or Additional Foreign Currency is implemented in accordance with clause (c) below, no further Loans shall be made as, continued as, or converted into, Eurocurrency Loans denominated in the applicable Foreign Currency or Additional Alternative Currency for such Interest Periods or to the extent so affected.
 
(c)      Alternative Rate of Interest . Notwithstanding anything to the contrary in Sections 2.13(a) and (b) above, if the Administrative Agent has made the determination (such determination to be conclusive absent manifest error) that (x) the circumstances described in Section 2.13(a)(x), (a)(y), (b)(x) or (b)(y) have arisen and that such circumstances are unlikely to be temporary, (y) any applicable interest rate specified herein is no longer a widely recognized benchmark rate for newly originated loans in the syndicated loan market in the applicable currency or (z) the applicable supervisor or administrator (if any) of any applicable interest rate specified herein or any Governmental Authority having or purporting to have jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which any applicable interest rate specified herein shall no longer be used for determining interest rates for loans in the syndicated loan market in the applicable currency, then the Administrative Agent may, to the extent practicable (in consultation with the Company and as determined by the Administrative Agent to be generally in accordance with similar situations in other transactions in which it is serving as administrative agent or otherwise consistent with market practice generally), establish a replacement interest rate (the “ Replacement Rate ”), in which case, the Replacement Rate shall, subject to the next two sentences, replace such applicable interest rate for all purposes under the Credit Documents unless and until (A) an event described in Section 2.13(a)(x), (a)(y), (b)(x), (b)(y), (c)(x), (c)(y) or (c)(z) occurs with respect to the Replacement Rate or (B) the Administrative Agent (or the Required Lenders (in the case of Loans described in clause (a)) or the Required Foreign Currency Lenders (in the case of Loans described in clause (b)) through the Administrative Agent) notifies the Company that the Replacement Rate does not adequately and fairly reflect the cost to the Lenders of funding the Loans bearing interest at the Replacement Rate. In connection with the establishment and application of the Replacement Rate, this Agreement and the other Credit Documents shall be amended solely with the consent of the Administrative Agent and the Company, as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provisions of this Section 2.13(c) (including, without limitation, adjustments to the interest rate margins or interest rate benchmark floors as the Administrative Agent or the Required Lenders (in the case of Loans described in clause (a)) or the Required Foreign Currency Lenders (in the case of Loans described in clause (b)) may reasonably request to equalize (to the extent practicable), as of the effective date of such amendment, the sum of the Replacement Rate and any applicable interest rate margin with respect thereto (taking into account applicable currencies and/or interest periods) with the sum of the applicable interest rate being replaced with such Replacement Rate and the interest rate margin applicable thereto). Notwithstanding anything to the contrary in this Agreement or the other Credit Documents


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(including, without limitation, Section 10.1), such amendment shall become effective without any further action or consent of any other party to this Agreement so long as the Administrative Agent shall not have received, within five (5) Business Days of the delivery of such amendment to the Lenders (together with a notice specifying such five (5) Business Day period), a written notice signed by Lenders constituting Required Lenders (in the case of Loans described in clause (a)) or the Required Foreign Currency Lenders (in the case of Loans described in clause (b)) stating that such Lenders object to such amendment (which such notice shall note with specificity the particular provisions of the amendment to which such Lenders object). To the extent the Replacement Rate is approved by the Administrative Agent in connection with this clause (c), the Replacement Rate shall be applied in a manner consistent with market practice; provided that, in each case, to the extent such market practice is not administratively feasible for the Administrative Agent, such Replacement Rate shall be applied as otherwise reasonably determined by the Administrative Agent (it being understood that any such modification by the Administrative Agent shall not require the consent of, or consultation with, any of the Lenders).

Section 2.14      Yield Protection .
(a)      Increased Costs Generally . If any Change in Law shall:

(i)      impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender or any Issuing Lender;

(ii)      subject the Administrative Agent, any Lender, any Issuing Lender or any other recipient of any payment to be made by or on account of any obligation of any Credit Party under any Credit Document to any (or increase in any) Taxes (other than (A) Taxes indemnified under Section 2.16 and (B) Excluded Taxes) with respect to its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, including but not limited to any Taxes imposed under the Dodd-Frank Wall Street Reform and Consumer Protection Act, or any requests, rules, guidelines or directives thereunder, or any similar law, regulation, request, rule, guideline or directive; or

(iii)      impose on any Lender or any Issuing Lender or the interbank market any other condition, cost or expense affecting this Agreement or Eurocurrency Loans made by such Lender or any Letter of Credit or participation therein;

and the result of any of the foregoing shall be to increase the cost to such Lender of making or maintaining any Eurocurrency Loan (or, in the case of clause (ii) above, any Loan or any participation in any Loan) or of maintaining its obligation to make any such Loan, or to increase the cost to such Lender or such Issuing Lender of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Administrative Agent, Lender, such Issuing Lender or other recipient hereunder (whether of principal, interest or any other amount) then, upon request of such Administrative Agent, Lender, such Issuing Lender, or other recipient, the Company will pay to such Administrative Agent, Lender, Issuing Lender or other recipient, as the case may be, such additional amount or amounts as will compensate such Administrative Agent, Lender, Issuing Lender or other recipient, as the case may be, for such additional costs incurred or reduction suffered.


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(b)      Capital Requirements . If any Lender or any Issuing Lender determines that any Change in Law affecting such Lender or such Issuing Lender or any lending office of such Lender or such Lender’s or such Issuing Lender’s holding company, if any, regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s or such Issuing Lender’s capital or on the capital of such Lender’s or such Issuing Lender’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or the Loans made by, or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by such Issuing Lender, to a level below that which such Lender or such Issuing Lender or such Lender’s or such Issuing Lender’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or such Issuing Lender’s policies and the policies of such Lender’s or such Issuing Lender’s holding company with respect to capital adequacy or liquidity), then from time to time the Company will pay to such Lender or such Issuing Lender, as the case may be, such additional amount or amounts as will compensate such Lender or such Issuing Lender or such Lender’s or such Issuing Lender’s holding company for any such reduction suffered.

(c)      Certificates for Reimbursement . A certificate of a Lender or an Issuing Lender setting forth the amount or amounts necessary to compensate such Lender or such Issuing Lender or its holding company, as the case may be, as specified in paragraph (a) or (b) of this Section 2.14 and delivered to the Company shall be conclusive absent manifest error. The Company shall pay such Lender or such Issuing Lender, as the case may be, the amount shown as due on any such certificate within ten (10) days after receipt thereof.

(d)      Delay in Requests . Failure or delay on the part of any Lender or any Issuing Lender to demand compensation pursuant to this Section 2.14 shall not constitute a waiver of such Lender’s or such Issuing Lender’s right to demand such compensation; provided that the Company shall not be required to compensate a Lender or an Issuing Lender pursuant to this Section 2.14 for any increased costs incurred or reductions suffered, as the case may be, to the extent that such Lender or such Issuing Lender fails to make a demand for such compensation more than nine (9) months after becoming aware of such Change in Law giving arise to such increased costs or reductions.

(e)      Each Lender agrees to use reasonable efforts (including reasonable efforts to change its lending office) to avoid or to minimize any amounts which might otherwise be payable pursuant to this paragraph (e) of this Section 2.14; provided , however , that such efforts shall not cause the imposition on such Lender of any additional costs or legal or regulatory burdens deemed by such Lender to be material.

Section 2.15      Compensation for Losses; Eurocurrency Liabilities .
(a)      Compensation for Losses . Upon demand of any Lender (with a copy to the Administrative Agent) from time to time, the Company shall promptly compensate such Lender for and hold such Lender harmless from any loss, cost or expense incurred by it as a result of:

(i)      any continuation, conversion, payment or prepayment of any Loan other than an Alternate Base Rate Loan, LIBOR Market Index Rate Loan or EURIBOR Market Index Rate Loan on a day other than the last day of the Interest Period for such Loan (whether voluntary, mandatory, automatic, by reason of acceleration, or otherwise);



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(ii)      any failure by any Borrower (for a reason other than the failure of such Lender to make a Loan) to prepay, borrow, continue or convert any Loan other than an Alternate Base Rate Loan on the date or in the amount notified by such Borrower; or

(iii)      any assignment of a Eurocurrency Loan other than a LIBOR Market Index Rate Loan or EURIBOR Market Index Rate Loan on a day other than the last day of the Interest Period therefor as a result of a request by any Borrower pursuant to Section 2.19;

including any loss of anticipated profits and any loss or expense arising from the liquidation or reemployment of funds obtained by it to maintain such Loan or from fees payable to terminate the deposits from which such funds were obtained. The Company shall also pay any customary administrative fees charged by such Lender in connection with the foregoing.

For purposes of calculating amounts payable by the Company to the Lenders under this Section 2.15, each Lender shall be deemed to have funded each Eurocurrency Loan, as the case may be, made by it at the LIBOR Market Index Rate, LIBOR Rate, EURIBOR Market Index Rate or EURIBOR Rate for such Loan by a matching deposit or other borrowing in the applicable interbank market for a comparable amount and for a comparable period, whether or not such Eurocurrency Loan was in fact so funded.

(b)      Eurocurrency Liabilities . The Company shall pay to each Lender, as long as such Lender shall be required to maintain reserves under Regulation D with respect to “Eurocurrency liabilities” within the meaning of Regulation D, or under any similar or successor regulation with respect to Eurocurrency liabilities or Eurocurrency funding, additional interest on the unpaid principal amount of each Eurocurrency Loan equal to the actual costs of such reserves allocated to such Eurocurrency Loan, as the case may be, by such Lender (as determined by such Lender in good faith, which determination shall be conclusive), which shall be due and payable on each date on which interest is payable on such LIBOR Market Index Rate Loan, such LIBOR Rate Loan, such EURIBOR Market Index Rate Loan or such EURIBOR Rate Loan; provided that the Company shall have received at least fifteen (15) days prior notice (with a copy to the Administrative Agent) of such additional interest from such Lender. If a Lender fails to give notice fifteen (15) days prior to the relevant interest payment date, such additional interest shall be due and payable fifteen (15) days from receipt of such notice.

Section 2.16      Taxes .
(a)      Payments Free of Taxes . Any and all payments by or on account of any obligation of any Credit Party under any Credit Document shall be made free and clear of and without any Tax Deduction; provided that if any applicable law (as determined in the good faith discretion of an applicable Withholding Agent) requires a Tax Deduction from any such payment (including, for the avoidance of doubt, in the case of any Lender that is treated as a partnership for U.S. federal income tax purposes, any such Tax Deduction required to be made by such Lender (or any direct or indirect beneficial owner of such Lender that is treated as a partnership for U.S. federal income tax purposes) for the account of any of its direct or indirect beneficial owners), then the applicable Withholding Agent shall make such Tax Deduction and timely pay the full amount deducted to the relevant Governmental Authority in accordance with applicable law and, if such Tax is an Indemnified Tax, then the sum payable by the applicable Credit Party shall be increased as necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section 2.16) the Administrative Agent, Issuing Lender or Lender (or each of its beneficial


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owners), as the case may be, receives an amount equal to the sum it would have received had no such deductions been made. A certificate as to the amount of such withholding or deduction that is an Indemnified Tax delivered by the Withholding Agent to the Company (with, if the Withholding Agent is not the Administrative Agent, a copy to the Administrative Agent), shall be conclusive absent manifest error.

(b)      Payment of Other Taxes by the Borrowers . Without limiting the provisions of paragraph (a) above, each Borrower shall timely pay to the relevant Governmental Authority in accordance with applicable law, or at the option of the Administrative Agent timely reimburse it for the payment of, any Other Taxes, including, without limitation:

(i)      all stamp duties, registration or other similar Taxes payable in respect of any Credit Document;

(ii)      all amounts set out or expressed in a Credit Document to be payable by any person to the Administrative Agent, Lender or Issuing Lender which (in whole or in part) constitute the consideration for a supply or supplies for VAT purposes shall be deemed to be exclusive of any VAT which is chargeable on such supply or supplies, and accordingly, subject to section (iii) below, if VAT is or becomes chargeable on any supply made by the Administrative Agent, Lender or Issuing Lender to any person under a Credit Document, that person shall pay to the Administrative Agent, Lender or Issuing Lender (in addition to and at the same time as paying any other consideration for such supply) an amount equal to the amount of such VAT (and such Administrative Agent, Lender or Issuing Lender shall promptly provide an appropriate VAT invoice to such person);

(iii)      if VAT is or becomes chargeable on any supply made by the Administrative Agent, Lender or Issuing Lender (the “ Supplier ”) to any other Administrative Agent, Lender or Issuing Lender (the “ Recipient ”) under a Credit Document, and any person other than the Recipient (the “ Subject Party ”) is required by the terms of any Credit Document to pay an amount equal to the consideration for such supply to the Supplier (rather than being required to reimburse the Recipient in respect of that consideration),

(1)      (where the Supplier is the person required to account to the relevant tax authority for the VAT) the Subject Party must also pay to the Supplier (at the same time as paying that amount) an additional amount equal to the amount of the VAT. The Recipient must (where this paragraph (1) applies) promptly pay to the Subject Party an amount equal to any credit or repayment the Recipient receives from the relevant tax authority which the Recipient reasonably determines relates to the VAT chargeable on that supply; and

(2)      (where the Recipient is the person required to account to the relevant tax authority for the VAT) the Subject Party must promptly, following demand from the Recipient, pay to the Recipient an amount equal to the VAT chargeable on that supply. The Recipient must (where this paragraph (2) applies) promptly pay to the Subject Party an amount equal to any credit or repayment the Recipient receives from the relevant tax authority which the Recipient reasonably determines relates to the VAT chargeable on that supply;



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(iv)      where a Credit Document requires any person to reimburse or indemnify the Administrative Agent, Lender or Issuing Lender for any cost or expense, that person shall reimburse or indemnify (as the case may be) such Administrative Agent, Lender or Issuing Lender for the full amount of such cost or expense, including such part thereof as represents VAT, save to the extent that such Administrative Agent, Lender or Issuing Lender reasonably determines that it is entitled to credit or repayment in respect of such VAT from the relevant tax authority; and

(v)      any reference in this Section 2.16(b) to any person shall, at any time when such person is treated as a member of a group for VAT purposes, include (where appropriate and unless the context otherwise requires) a reference to the representative member of such group at such time (the term “representative member” to have the same meaning as in the U.K. Value Added Tax Act 1994 or such similar concept as may be provided under similar legislation in the European Union or elsewhere).

(c)      Indemnification by each Credit Party . Subject to Section 2.16(i), each Credit Party shall indemnify the Administrative Agent, each Lender and each Issuing Lender, within ten (10) days after demand therefor, for the full amount of any Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this Section 2.16) payable or paid by the Administrative Agent, such Lender (or its beneficial owners) or such Issuing Lender, as the case may be, and any penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to the Company by a Lender or an Issuing Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender or an Issuing Lender, shall be conclusive absent manifest error. Each Credit Party shall also indemnify the Administrative Agent, within ten (10) days after demand therefor, for any amount which a Lender or an Issuing Lender for any reason fails to pay indefeasibly to the Administrative Agent as required by paragraph (d) below; provided that , such Lender or such Issuing Lender, as the case may be, shall indemnify the Credit Parties to the extent of any payment any Credit Party makes to the Administrative Agent pursuant to this sentence. In addition, each Credit Party shall indemnify the Administrative Agent, each Lender and each Issuing Lender, within ten (10) days after demand therefor, for any incremental Taxes that may become payable by such Administrative Agent, Lender (or its beneficial owners) or any Issuing Lender as a result of any failure of any Credit Party to pay any Taxes when due to the appropriate Governmental Authority or to deliver to the Administrative Agent, pursuant to paragraph (e) below, documentation, reasonably satisfactory to the Administrative Agent, evidencing the payment of Taxes.

(d)      Indemnification of the Administrative Agent . Each Lender and each Issuing Lender shall indemnify the Administrative Agent within ten (10) days after demand therefor, for the full amount of any (i) Indemnified Taxes attributable to such Lender (but only to the extent that any Credit Party has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of any Credit Party hereunder), (ii) Taxes attributable to such Lender’s failure to comply with the provisions of Section 10.6(d) relating to the maintenance of a Participant Register, and (iii) Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent, and reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender and each Issuing


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Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender or such Issuing Lender, as the case may be, under any Credit Document against any amount due to the Administrative Agent under this paragraph (d). The agreements in this paragraph (d) shall survive the resignation and/or replacement of the Administrative Agent.

(e)      Evidence of Payments . As soon as practicable after any payment of Taxes by any Credit Party to a Governmental Authority pursuant to this Section 2.16, the Company shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.

(f)      Status of Lenders . (i) Any Foreign Lender that is entitled to an exemption from or reduction of withholding tax with respect to payments made under any Credit Document shall, to the extent permitted by applicable law, deliver to the Company and the Administrative Agent, at the time or times reasonably requested by the Company or the Administrative Agent, such properly completed and executed documentation prescribed by applicable law as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, the relevant Borrower and the relevant Foreign Lender (at the reasonable written request of the relevant Borrower) shall co-operate in completing any procedural formalities necessary for such Borrower to obtain authorization to make a payment without a Tax Deduction. In particular, each Treaty Lender shall within the applicable time limits under the laws of the relevant jurisdiction complete, file and/or provide any tax certificate, treaty application or other document as may be reasonably requested by the relevant Borrower in writing in order for the Borrower to be able to make payments without a Tax Deduction. In addition, any Lender, if requested by the Company or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Company or the Administrative Agent as will enable the Company or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in this Section 2.16(f)(i), in the case of any withholding Tax other than U.S. federal withholding Tax, the completion, execution and submission of such documentation, or performance of such action described in this Section 2.16(f)(i), shall not be required if in the Lender’s reasonable judgment such completion, execution, submission or performance would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.

(ii)      Without limiting the generality of the foregoing, in the event that the Borrower is a U.S. Borrower,

(A)      any Lender that is a U.S. Person shall deliver to the Company and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the request of the Company or the Administrative Agent), executed originals of Internal Revenue Service Form W-9 and such other documentation or information prescribed by applicable laws or reasonably requested by the Company or the Administrative Agent as will enable the Company or the Administrative Agent, as the case may be, to determine whether or not such Lender is subject to backup withholding or information reporting requirements; and

(B)      any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Company and the Administrative Agent (in such number of copies


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as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the request of the Company or the Administrative Agent), whichever of the following is applicable:

(I)      executed originals of Internal Revenue Service Form W-8BEN or W-8BEN-E claiming eligibility for benefits of an income tax treaty to which the United States of America is a party;

(II)      executed originals of Internal Revenue Service Form W-8ECI;

(III)      in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under section 881(c) of the Code, (x) a certificate to the effect that (A) such Foreign Lender is not a “bank” within the meaning of section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Company within the meaning of section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in section 881(c)(3)(C) of the Code and (B) the interest payments in question are not effectively connected with a U.S. trade or business conducted by such Foreign Lender or are effectively connected but are not includible in the Foreign Lender’s gross income for U.S. federal income tax purposes under an income tax treaty (a “ U.S. Tax Compliance Certificate ”) and (y) executed originals of Internal Revenue Service Form W-8BEN or W-8BEN-E;

(IV)      to the extent a Foreign Lender is not the beneficial owner (for example, where the Foreign Lender is a partnership or participating Lender granting a typical participation), executed originals of Internal Revenue Service Form W-8IMY, accompanied by a Form W-8ECI, W-8BEN, W-8BEN-E, U.S. Tax Compliance Certificate, Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a withholding foreign partnership within the meaning of Treasury Regulations Section 1.1441-5(c)(2)(i) (and not a participating Lender) and one or more beneficial owners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate on behalf of each such beneficial owner; or

(V)      executed originals of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Company or the Administrative Agent to determine the withholding or deduction required to be made.

(C)      if a payment made to a Lender under any Credit Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender fails to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender


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shall deliver to the Company and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Company or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Company or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (C), “FATCA” shall include any amendments made to FATCA after the Restatement Effective Date.

For purposes of determining withholding Taxes imposed under FATCA, from and after the Restatement Effective Date, the Borrowers and the Administrative Agent shall treat (and the Lenders hereby authorize the Administrative Agent to treat) the Loans as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).

Each Lender agrees that if any form or certification it previously delivered pursuant to this Section 2.16(f) expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Company and the Administrative Agent in writing of its legal inability to do so.

(iii)      Without limiting the generality of Section 2.16(f)(i), in the event that the Borrower is a U.K. Borrower, each Lender which becomes a Lender under this Agreement after the Restatement Effective Date shall indicate in the Form of Assignment and Assumption which it executes on becoming a Lender and for the benefit of the Administrative Agent and without liability to any Borrower which of the following categories it falls in: (A) not a Qualifying Lender; (B) a Qualifying Lender (other than a Treaty Lender); or (C) a Treaty Lender.

(iv)      Nothing in this Section 2.16(f) shall require a Treaty Lender to:

(A)      register under the HMRC DT Treaty Passport scheme;

(B)      apply the HMRC DT Treaty Passport scheme to any Loan if it has so registered; or

(C)      file treaty forms if it has included an indication to the effect that it wishes the HMRC DT Treaty Passport scheme to apply to this Agreement in accordance with clause (v) below (HMRC DT Treaty Passport scheme confirmation) and the U.K. Borrower making that payment has not complied with its obligations under Section 2.16(f)(vi) below (HMRC DT Treaty Passport scheme confirmation).

(v)      A Treaty Lender which becomes a Lender on the day on which this Agreement is entered into that holds a passport under the HMRC DT Treaty Passport scheme, and which wishes that scheme to apply to this Agreement, shall include an indication to that effect (for the benefit of the Administrative Agent and without liability to any Borrower) by including its scheme reference number and its jurisdiction of tax residence opposite its name


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in Schedule 2.16(f) and any such passport holder that becomes a Lender after the Restatement Effective Date and wishes the HMRC DT Treaty Passport scheme to apply shall give an indication to that effect in the Assignment and Assumption (for the benefit of the Administrative Agent and without liability to any Borrower) and include its scheme reference number and its jurisdiction of tax residence in such Assignment and Assumption.

(vi)      Where a Lender includes the indication described in Section 2.16(f)(v) above in Schedule 2.16(f) or in the Assignment and Assumption, each U.K. Borrower shall, to the extent that that Lender is a Lender under a Loan made available to that U.K. Borrower, file a duly completed form DTTP2 in respect of such Lender with the United Kingdom HM Revenue & Customs within thirty (30) days of the Restatement Effective Date or date of assignment, as appropriate, and shall promptly provide the Lender with a copy of that filing.

(vii)      If a Lender has not included an indication to the effect that it wishes the HMRC DT Treaty Passport scheme to apply to this Agreement in accordance with Section 2.16(f)(v) above (United Kingdom HMRC DT Treaty Passport scheme confirmation), no Borrower shall file any form relating to the United Kingdom HMRC DT Treaty Passport scheme in respect of that Lender’s Loan.

(g)      Treatment of Certain Refunds . If any party determines, in its reasonable, good faith discretion, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 2.16 (including the payment of additional amounts pursuant to this Section 2.16), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section 2.16 with respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party incurred in connection with the collection of such refund, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified party, agrees to repay to such indemnified party the amount paid over pursuant to this paragraph (g) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to a Governmental Authority. Notwithstanding anything to the contrary in this paragraph (g), in no event will an indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (g) to the extent the payment of which would place the indemnified party in a less favorable net after-Tax position than any indemnified party would have been in if the indemnification payments or additional amounts giving rise to such refund had never been paid. This paragraph (g) shall not be construed to require the Administrative Agent, any Lender or any Issuing Lender to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.

(h)      Survival . The agreements and obligations of the Credit Parties contained in this Section 2.16 shall survive the termination of the Credit Documents and payment of any obligations thereunder.

(i)      Exclusions from Indemnification . No Borrower is required to make an additional payment to a Lender under paragraph (c) above for a Tax Deduction in respect of tax imposed by the U.K. from a payment of interest on a Loan, if on the date on which the payment falls due:

(i)      the payment could have been made to the relevant Lender without a Tax Deduction if the Lender had been a Qualifying Lender, but on that date that Lender is not


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or has ceased to be a Qualifying Lender other than as a result of (i) any change after the date it became a Lender under this Agreement in (or in the interpretation, administration or application of) any law or treaty or any published practice or concession of any relevant taxing authority; or (ii) a Borrower changing its jurisdiction of tax residence.

(ii)      the relevant Lender is a Qualifying Lender solely by virtue of paragraph (a)(i)(B) of the definition of Qualifying Lender and:

(A)      an officer of the United Kingdom HM Revenue & Customs has given (and not revoked) a direction (a “ Direction ”) under section 931 of the ITA which relates to the payment and that Lender has received from the Borrower making the payment or from the Company a certified copy of that Direction; and

(B)      the payment could have been made to the Lender without any Tax Deduction if that Direction had not been made; or

(iii)      the relevant Lender is a Qualifying Lender solely by virtue of paragraph (a)(i)(B) of the definition of Qualifying Lender and:

(A)      the relevant Lender has not given a U.K. Tax Confirmation to the Company; and

(B)      the payment could have been made to the Lender without any Tax Deduction if the Lender had given a U.K. Tax Confirmation to the Company, on the basis that the U.K. Tax Confirmation would have enabled the Borrower to have formed a reasonable belief that the payment was an “excepted payment” for the purpose of section 930 of the ITA.

Section 2.17      Indemnification; Nature of the Issuing Lenders’ Duties .
(a)      In addition to its other obligations under Section 2.3, the Credit Parties hereby agree to protect, indemnify, pay and save each Issuing Lender and each Lender harmless from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ fees) that such Issuing Lender or such Lender may incur or be subject to as a consequence, direct or indirect, of (i) the issuance of any Letter of Credit or (ii) the failure of such Issuing Lender to honor a drawing under a Letter of Credit as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority (all such acts or omissions, herein called “ Government Acts ”).

(b)      As between the Credit Parties, each Issuing Lender and each Lender, the Credit Parties shall assume all risks of the acts, omissions or misuse of any Letter of Credit by the beneficiary thereof. In the absence of gross negligence or willful misconduct, neither any Issuing Lender nor any Lender shall be responsible: (i) for the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (ii) for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that may prove to be invalid or ineffective for any reason; (iii) for failure of the beneficiary of a Letter of Credit to comply fully with conditions


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required in order to draw upon a Letter of Credit; (iv) for errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they be in cipher; (v) for errors in interpretation of technical terms; (vi) for any loss or delay in the transmission or otherwise of any document required in order to make a drawing under a Letter of Credit or of the proceeds thereof; and (vii) for any consequences arising from causes beyond the control of any Issuing Lender or any Lender, including, without limitation, any Government Acts. None of the above shall affect, impair, or prevent the vesting of any Issuing Lender’s rights or powers hereunder.

(c)      In furtherance and extension of the specific provisions hereinabove set forth, any action taken or omitted by any Issuing Lender or any Lender, under or in connection with any Letter of Credit or the related certificates, if taken or omitted in the absence of gross negligence or willful misconduct, shall not put such Issuing Lender or such Lender under any resulting liability to the Credit Parties. It is the intention of the parties that this Agreement shall be construed and applied to protect and indemnify each Issuing Lender and each Lender against any and all risks involved in the issuance of the Letters of Credit, all of which risks are hereby assumed by the Credit Parties, including, without limitation, any and all risks of the acts or omissions, whether rightful or wrongful, of any Governmental Authority. The Issuing Lenders and the Lenders shall not, in any way, be liable for any failure by any Issuing Lender or anyone else to pay any drawing under any Letter of Credit as a result of any Government Acts or any other cause beyond the control of any Issuing Lender and the Lenders.

(d)      Nothing in this Section 2.17 is intended to limit the Reimbursement Obligation of any Borrower contained in Section 2.3(d) hereof. The obligations of the Credit Parties under this Section 2.17 shall survive the termination of this Agreement. No act or omissions of any current or prior beneficiary of a Letter of Credit shall in any way affect or impair the rights of the Issuing Lenders and the Lenders to enforce any right, power or benefit under this Agreement.

(e)      Notwithstanding anything to the contrary contained in this Section 2.17, the Credit Parties shall have no obligation to indemnify any Issuing Lender or any Lender in respect of any liability incurred by such Issuing Lender or such Lender arising out of the gross negligence or willful misconduct of such Issuing Lender (including action not taken by such Issuing Lender or such Lender), as determined by a court of competent jurisdiction or pursuant to arbitration.

Section 2.18      Illegality .
Notwithstanding any other provision of this Credit Agreement, if any Change in Law shall make it unlawful for such Lender or its Eurocurrency Lending Office to make or maintain Eurocurrency Loans as contemplated by this Credit Agreement or to obtain in the applicable interbank market through its Eurocurrency Lending Office the funds with which to make such Loans, (a) such Lender shall promptly notify the Administrative Agent and the Company thereof, (b) the commitment of such Lender hereunder to make Eurocurrency Loans or continue Eurocurrency Loans, as such shall forthwith be suspended until the Administrative Agent shall give notice that the condition or situation which gave rise to the suspension shall no longer exist, and (c) such Lender’s Loans then outstanding as Eurocurrency Loans, if any, shall be prepaid by the Company or the applicable Borrower or, if applicable, in the case of Dollar denominated Loans, converted on the last day of the Interest Period for such Loans or within such earlier period as required by law (or in the case of LIBOR Market Index Rate Loans or EURIBOR Market Index Rate Loans, when required by the Administrative Agent) into Alternate Base Rate Loans denominated in Dollars. The Company hereby agrees to promptly pay any Lender, upon its demand, any additional amounts necessary to compensate


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such Lender for actual and direct costs (but not including anticipated profits) reasonably incurred by such Lender in making any repayment in accordance with this Section 2.18 including, but not limited to, any interest or fees payable by such Lender to lenders of funds obtained by it in order to make or maintain its Eurocurrency Loans hereunder. A certificate (which certificate shall include a description of the basis for the computation) as to any additional amounts payable pursuant to this Section 2.18 submitted by such Lender, through the Administrative Agent, to the Company shall be conclusive in the absence of manifest error. Each Lender agrees to use reasonable efforts (including reasonable efforts to change its Eurocurrency Lending Office) to avoid or to minimize any amounts which may otherwise be payable pursuant to this Section 2.18; provided , however , that such efforts shall not cause the imposition on such Lender of any additional costs or legal or regulatory burdens deemed by such Lender in its sole discretion to be material.

Section 2.19      Replacement of Lenders .
(a)      Designation of a Different Lending Office . If any Lender requests compensation under Section 2.14, or requires any Borrower to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.16, then such Lender shall use reasonable, good faith efforts to designate a different lending office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the reasonable, good faith judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 2.14 or Section 2.16, as the case may be, in the future and (ii) would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. The Company hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.

(b)      Replacement of Lenders . If any Lender (i) requests compensation under Section 2.14, or if any Borrower is required to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.16, (ii) if any Lender becomes a Defaulting Lender, (iii) in connection with any proposed amendment, modification, termination, waiver or consent with respect to any of the provisions hereof as contemplated by Section 10.1, the consent of Required Lenders shall have been obtained but the consent of one or more of such other Lenders whose consent is required shall not have been obtained or (iv) fails to provide consent to a Foreign Borrower Request under Section 2.23(a) that has been approved by Required Lenders, in each case, then the Company may, at its sole expenses and effort, upon notice to such Lender and the Administrative Agent, require any such Lender to assign and delegate (in accordance with and subject to the restrictions contained in, and consents required by, Section 10.6) all of its interests, rights and obligations under this Agreement and the related Credit Documents (or in the case of clause (iv), if so elected by the Company, all of such Lender’s interests, rights and obligations pertaining to the Revolving Facility only) to an assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided that:

(A)      the Company shall have paid to the Administrative Agent the assignment fee (if any) specified in Section 10.6;

(B)      such Lender shall have received payment of an amount equal to the outstanding principal of its Loans (or in the case of clause (iv) above, if so elected by the Company, the outstanding principal of its Revolving Loans only) and funded participations in Letters of Credit, accrued interest thereon, accrued fees and all other amounts (excluding


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principal under the Term Loans in the case of clause (iv) above, if the Company has elected to replace such Lender under the Revolving Facility only) payable to it hereunder and under the other Credit Documents (including any amounts under Section 2.15) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the applicable Borrower (in the case of all other amounts);

(C)      in the case of any such assignment resulting from a claim for compensation under Section 2.14 or payments required to be made pursuant to Section 2.16, such assignment will result in a reduction in such compensation or payments thereafter;

(D)      such assignment does not conflict with applicable law; and

(E)      in the case of clause (iii) above, the successor Lender has agreed to such amendment, modification, termination, waiver or consent and, in the case of clause (iv) above, the successor Lender has agreed to such Foreign Borrower Request.

Notwithstanding anything to the contrary in this Section 2.19(b), in the event that a Lender which holds Loans or Commitments under more than one Facility does not consent to a Foreign Borrower Request that has been approved by Required Lenders, the Company shall be permitted to either (x) replace such Lender with respect to the Revolving Facility only or (y) replace such Lender with respect to both the Revolving Facility and the Term Loan Facility.

A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Company to require such assignment and delegation cease to apply.

Section 2.20      Cash Collateral .
(a)      Cash Collateral . At any time that there shall exist a Defaulting Lender, promptly upon the request of the Administrative Agent, any Issuing Lender or any Swingline Lender (and in any event within three (3) Business Days of such request), the Borrowers shall deliver to the Administrative Agent Cash Collateral in an amount sufficient to cover all Fronting Exposure (after giving effect to Section 2.21 and any Cash Collateral provided by the Defaulting Lender).

(b)      Grant of Security Interest . All Cash Collateral (other than credit support not constituting funds subject to deposit) shall be maintained in blocked, non-interest bearing deposit accounts with the Administrative Agent. Each Borrower, and to the extent provided by any Lender, such Lender, hereby grants to (and subjects to the control of) the Administrative Agent, for the benefit of the Administrative Agent, the Issuing Lenders and the Lenders (including the Swingline Lenders), and agrees to maintain, a first priority security interest in all such cash, deposit accounts and all balances therein, and all other property so provided as collateral pursuant hereto, and in all proceeds of the foregoing, all as security for the obligations to which such Cash Collateral may be applied pursuant to paragraph (c) below. If at any time the Administrative Agent, any Issuing Lender or any Swingline Lender determines that Cash Collateral is subject to any right or claim of any Person other than the Administrative Agent as herein provided, or that the total amount of such Cash Collateral is less than the applicable Fronting Exposure and other obligations secured thereby, the Borrowers or the relevant Defaulting Lender will, promptly upon demand by the Administrative Agent, Issuing Lender or Swingline Lender pay or provide to the Administrative Agent additional Cash Collateral in an amount sufficient to eliminate such deficiency.


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(c)      Application . Notwithstanding anything to the contrary contained in this Agreement, Cash Collateral provided under any of this Section 2.20 or Section 2.21 in respect of Letters of Credit or Swingline Loans, shall be held and applied to the satisfaction of the specific LOC Obligations, Swingline Loans, obligations to fund participations therein (including, as to Cash Collateral provided by a Defaulting Lender, any interest accrued on such obligation) and other obligations for which the Cash Collateral was so provided, prior to any other application of such property as may be provided for herein.

(d)      Release . Cash Collateral (or the appropriate portion thereof) provided to reduce Fronting Exposure or other obligations shall be released promptly following (i) the elimination of the applicable Fronting Exposure or other obligations giving rise thereto (including by the termination of Defaulting Lender status of the applicable Lender (or, as appropriate, its assignee)), or (ii) the Administrative Agent’s good faith determination that there exists excess Cash Collateral (which determination shall be confirmed by any Issuing Lender or Swingline Lender affected by such release of Cash Collateral); provided , however, (A) that Cash Collateral furnished by or on behalf of a Credit Party shall not be released during the continuance of a Default (and following application as provided in this Section 2.20 may be otherwise applied in accordance with Section 2.11), and (B) the Person providing Cash Collateral and each applicable Issuing Lender or applicable Swingline Lender may agree that Cash Collateral shall not be released but instead held to support future anticipated Fronting Exposure or other obligations.

Section 2.21      Defaulting Lenders .
(a)      Adjustments . Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as such Lender is no longer a Defaulting Lender, to the extent permitted by applicable law:

(i)      Waivers and Amendments . Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in the definition of Required Lenders and Section 10.1.

(ii)      Reallocation of Payments . Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article VII or otherwise) shall be applied at such time or times as may be determined by the Administrative Agent as follows: first , to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second , to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuing Lender or any Swingline Lender or any Additional Alternative Currency Lender hereunder; third , if so determined by the Administrative Agent or requested by any Issuing Lender or any Swingline Lender, to be held as Cash Collateral for future funding obligations of such Defaulting Lender in respect of any participation in any Swingline Loan or Letter of Credit or Additional Alternative Currency Loan; fourth , as the Company may request (so long as no Default exists), to the funding of any Loan in respect of which that Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth , if so determined by the Administrative Agent and the Company, to be held in a non-interest bearing deposit account and released in order to satisfy obligations of such Defaulting Lender to fund Loans under this Agreement; sixth , to the payment of any amounts owing to the Lenders, the Issuing


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Lenders or Swingline Lenders as a result of any judgment of a court of competent jurisdiction obtained by any Lender, the Issuing Lenders or Swingline Lenders against that Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh , so long as no Default exists, to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth , to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (A) such payment is a payment of the principal amount of any Loans or LOC Obligations in respect of which such Defaulting Lender has not fully funded its appropriate share, and such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.2 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and LOC Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or LOC Obligations owed to, such Defaulting Lender. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to this Section 2.21 shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.

(iii)      Certain Fees .

(A)      Commitment Fees . (1) No Commitment Fee shall accrue on any of the Commitments of a Defaulting Lender so long as such Lender shall be a Defaulting Lender and (2) any Commitment Fee accrued with respect to the Commitments of a Defaulting Lender during the period prior to the time such Lender became a Defaulting Lender and unpaid at such time shall not be payable by the Company so long as such Lender shall be a Defaulting Lender.

(B)      Letter of Credit Fees . A Defaulting Lender shall not be entitled to receive any Letter of Credit Fee for any period during which it is a Defaulting Lender, except that a Defaulting Lender shall be entitled to receive a Letter of Credit Fee with respect to each Letter of Credit or portion thereof for which it has provided Cash Collateral pursuant to Section 2.20 or Section 2.21(a)(v). With respect to any Letter of Credit Fee that a Defaulting Lender is not entitled to receive in accordance with the terms of this Section 2.21, such Letter of Credit Fee shall be paid to the non-Defaulting Lenders to the extent such Defaulting Lender’s LOC Obligations have been reallocated to the Non-Defaulting Lenders in accordance with clause (iv) below; provided that if any portion of such Defaulting Lender’s LOC Obligations have not been reallocated to the Non-Defaulting Lenders and have not been Cash Collateralized by the Defaulting Lender (the “ Exposed LOC Obligations ”), the Letter of Credit Fees corresponding to the Exposed LOC Obligations (1) shall not be payable by the Company to the extent the Borrowers have Cash Collateralized such Exposed LOC Obligations and (2) shall be payable to the applicable Issuing Lender to the extent the Borrowers have not Cash Collateralized such Exposed LOC Obligations.

(iv)      Reallocation of Participations to Reduce Fronting Exposure . All or any part of such Defaulting Lender’s LOC Obligations and its Swingline Exposure and obligations to acquire participations in Additional Alternative Currency Loans shall


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automatically (effective on the day such Lender becomes a Defaulting Lender) be reallocated among the Non-Defaulting Lenders in accordance with their respective Revolving Commitment Percentages (calculated without regard to such Defaulting Lender's Revolving Commitment) but only to the extent that such reallocation does not cause the aggregate Committed Funded Exposure of any Non-Defaulting Lender to exceed such Non-Defaulting Lender's Commitment. Subject to Section 10.28, no reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting Lender’s increased exposure following such reallocation.

(v)      Cash Collateral . If the reallocation described in clause (iv) above cannot, or can only partially, be effected, the Company shall, without prejudice to any right or remedy available to it hereunder or under law, immediately following notice by the Administrative Agent, any Issuing Lender or any Swingline Lender, Cash Collateralize such Defaulting Lender’s LOC Obligations and its Swingline Exposure (after giving effect to any partial reallocation pursuant to clause (iv) above) in accordance with the procedures set forth in Section 2.20 for so long as such LOC Obligations or Swingline Loans are outstanding.

(b)      Defaulting Lender Cure . If the Company, the Administrative Agent and each Swingline Lender and each Issuing Lender agree in writing in their sole discretion that a Defaulting Lender should no longer be deemed to be a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any Cash Collateral), that Lender will, to the extent applicable, purchase that portion of outstanding Loans of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the committed Loans and funded and unfunded participations in Letters of Credit and Swingline Loans and Additional Alternative Currency Loans to be held on a pro rata basis by the Lenders in accordance with their Revolving Commitment Percentages (without giving effect to Section 2.21(a)(iv), whereupon such Lender will cease to be a Defaulting Lender); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of any Borrower while that Lender was a Defaulting Lender; and provided , further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.

(c)      Termination of Impacted Lenders . The Company may terminate the unused amount of the Commitment of any Defaulting Lender that is an Impacted Lender upon not less than ten Business Days’ prior notice to the Administrative Agent (which shall promptly notify the Lenders thereof), and in such event the provisions of Section 2.21(a)(ii) will apply to all amounts thereafter paid by any Borrower for the account of such Impacted Lender under this Agreement (whether on account of principal, interest, fees, indemnity or other amounts); provided that (i) no Event of Default shall have occurred and be continuing, and (ii) such termination shall not be deemed to be a waiver or release of any claim any Borrower, the Administrative Agent, any Issuing Lender, any Swingline Lender or any Lender may have against such Impacted Lender.





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Section 2.22      Incremental Facility .
(a)      Incremental Term Loans, Revolving Facility Increases and Additional Revolving Facilities . Subject to the terms and conditions set forth herein, the Borrowers shall have the right, at any time and from time to time prior to the Maturity Date, to incur additional Indebtedness under this Credit Agreement in the form of (i) new term loan facilities under this Credit Agreement (each, an “ Incremental Term Loan ”), (ii) an increase to the Revolving Committed Amount (each, a “ Revolving Facility Increase ”) or (iii) additional tranches under the Revolving Facility (each, an “ Additional Revolving Facility ”); provided that, (a) all Revolving Loans, Swingline Loans and participations in LOC Obligations made pursuant to any Additional Revolving Facility shall be deemed to be Revolving Loans, Swingline Loans or LOC Obligations, as the case may be, for all purposes hereof except as otherwise provided in this Section 2.22 and (b) for the avoidance of doubt, all Revolving Loans, Letters of Credit and Swingline Loans made pursuant to such Additional Revolving Facility will be held ratably, borrowed, repaid and otherwise treated as necessary to provide for pro rata borrowing and repayment with respect to other Revolving Loans, Letters of Credit and Swingline Loans made pursuant to the Revolving Loan Facility; provided that the aggregate principal amount of all Incremental Term Loans and/or Commitments under any Revolving Facility Increase and/or Additional Revolving Facility that have been added pursuant to this Section 2.22 since the Restatement Effective Date (whether or not still outstanding or in effect) shall not exceed the Incremental Increase Amount.

(b)      Terms and Conditions . Subject to Section 1.8, the following terms and conditions shall apply to any Incremental Term Loan, Revolving Facility Increase or Additional Revolving Facility, as applicable: (i) no Default or Event of Default shall exist immediately prior to or after giving effect to such Incremental Term Loan, Revolving Facility Increase or Additional Revolving Facility, and, after giving effect to such Incremental Term Loan, Revolving Facility Increase or Additional Revolving Facility on a Pro Forma Basis, the Group Members shall be in compliance with the financial covenants set forth in Section 6.13 calculated based on the financial information most recently delivered to the Administrative Agent pursuant to Section 5.1(a) or (b); provided that (x) no cash or Cash Equivalents constituting proceeds of any proposed Incremental Term Loans or Loans made under any Revolving Facility Increase or Additional Revolving Facility may be applied to reduce Consolidated Funded Debt for purposes of calculating the Total Net Leverage Ratio, and (y) the Total Net Leverage Ratio shall be calculated as if any proposed Incremental Term Loans and the Revolving Facility (including any proposed Revolving Facility Increase and/or Additional Revolving Facility) had been outstanding and fully borrowed, (ii) (x) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no less than the Weighted Average Life to Maturity of the existing Term Loans (except by virtue of amortization of or prepayment of the Term Loans prior to such date of determination) and (y) the interest rate, fees and, subject to the immediately preceding clause (ii)(x), amortization schedule applicable to such Incremental Term Loans shall be as determined by the Company and the Lenders providing such Incremental Term Loans, (iii) the terms (other than with respect to changes permitted pursuant to subclauses (ii) above and (vii) below) and documentation in respect of any Incremental Term Loan, to the extent not consistent with the Term Loans, will be reasonably satisfactory to the Administrative Agent; provided the terms of any such Incremental Term Loans with respect to mandatory and voluntary prepayments and commitment reductions shall be the same as provided for herein with respect to Term Loans, (iv) the terms (other than with respect to changes permitted pursuant to subclause (vii) and this subclause) and documentation in respect of any Additional Revolving Facility, to the extent not consistent with the Revolving Loans, will be reasonably satisfactory to the Administrative Agent; provided the terms of any such Additional Revolving Facility with respect to mandatory and voluntary prepayments


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and commitment reductions shall be the same as provided for herein with respect to Revolving Loans and the interest rate and fees with respect to any Additional Revolving Facility shall be as determined by the Company and the Lenders providing commitments with respect to such Additional Revolving Facility, (v) the terms and documentation in respect of any Revolving Facility Increase shall be consistent with the Revolving Loans, (vi) any loans made pursuant to an Incremental Term Loan, Revolving Facility Increase and/or Additional Revolving Facility shall be incurred by the Company or a Foreign Borrower, as applicable, and will be secured and guaranteed on a pari passu basis with the other obligations of the Company or such Foreign Borrower, as applicable, (vii) any such Revolving Facility Increase, Additional Revolving Facility or Incremental Term Loan shall have a maturity date no sooner than the Maturity Date (or, if later, the maturity date with respect to any existing Incremental Term Loan or Additional Revolving Facility, as applicable), (viii) any Lenders providing such Revolving Facility Increase, Additional Revolving Facilities or Incremental Term Loans shall be entitled to the same voting rights as the existing Lenders, (ix) any such Incremental Term Loan, Revolving Facility Increase or Additional Revolving Facility shall be in a minimum principal amount of (A) $50,000,000 and integral multiples of $5,000,000 in excess thereof with respect to Loans denominated in Dollars, (B) €50,000,000 and integral multiples of €5,000,000 in excess thereof with respect to Loans denominated in Euros, (C) ₤50,000,000 and integral multiples of ₤5,000,000 in excess thereof with respect to Loans denominated in British Pounds Sterling or (D) the Dollar Equivalent of $50,000,000 and in integral multiples of the Dollar Equivalent of $5,000,000 in excess thereof with respect to Loans denominated in Alternative Currencies (or, in each case, the remaining amount of the Incremental Increase Amount, if less), (x) the proceeds of any such Incremental Term Loan, Revolving Facility Increase or Additional Revolving Facility will be used for the purposes set forth in Section 5.12, (xi) the applicable Borrower shall execute a promissory note in favor of any new Lender or any existing Lender requesting a promissory note, as applicable, who provides an Incremental Term Loan or Additional Revolving Facility or whose Revolving Commitment is increased, as applicable, pursuant to this Section 2.22, (xii) the conditions to Extensions of Credit in Section 4.2 shall have been satisfied, (xiii) the Administrative Agent shall have received (A) an opinion or opinions (including, if reasonably requested by the Administrative Agent, local counsel opinions) of counsel for the Credit Parties, addressed to the Administrative Agent and the Lenders, in form and substance reasonably acceptable to the Administrative Agent, (B) any authorizing corporate documents as the Administrative Agent may reasonably request and (C) if applicable, a duly executed Notice of Borrowing, and (xiv) the Administrative Agent shall have received from a Responsible Officer of the Company updated financial projections and an officer’s certificate, in each case, in form and substance reasonably satisfactory to the Administrative Agent, demonstrating that, (A) no Default or Event of Default shall exist immediately prior to or after giving effect to such Incremental Term Loan, Revolving Facility Increase or Additional Revolving Facility, and (B) after giving effect to any such Incremental Term Loan, Revolving Facility Increase or Additional Revolving Facility on a Pro Forma Basis, the Company will be in compliance with the financial covenants set forth in Section 6.13 calculated based on the financial information most recently delivered to the Administrative Agent pursuant to Section 5.1(a) or (b); provided that (x) no cash or Cash Equivalents constituting proceeds of any proposed Incremental Term Loans or Loans made under any Revolving Facility Increase or Additional Revolving Facility may be applied to reduce Consolidated Funded Debt for purposes of calculating the Total Net Leverage Ratio, and (y) the Total Net Leverage Ratio shall be calculated as if any proposed Incremental Term Loans and the Revolving Facility (including any proposed Revolving Facility Increase and/or Additional Revolving Facility) had been outstanding and fully borrowed. Incremental Term Loans, Revolving Facility Increases and Additional Revolving Facilities shall be available to the Borrowers notwithstanding any previous election by the Company to reduce the Revolving Committed Amount.



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(c)      Revolving Facility Increase or Additional Revolving Facility .

(i)      In connection with the closing of any Revolving Facility Increase, the outstanding Revolving Loans and Participation Interests shall be reallocated by causing such fundings and repayments (and shall not be subject to any processing and/or recordation fees) among the Revolving Lenders (and the Company shall be responsible for any costs of the Administrative Agent arising hereunder resulting from such reallocation and repayments and for any payments owing under Section 2.15(a)) of Revolving Loans as necessary such that, after giving effect to such Revolving Facility Increase, each Revolving Lender will hold Revolving Loans and Participation Interests based on its Revolving Commitment Percentage (after giving effect to such Revolving Facility Increase).

(ii)      On the date on which any revolving commitments are effected under any Additional Revolving Facility, subject to the satisfaction of the foregoing terms and conditions, the Administrative Agent and the Credit Parties shall enter into an amendment to this Agreement to incorporate the terms of such Additional Revolving Facility hereunder on substantially the same terms as are applicable to the existing Revolving Facility, other than as provided above, and such amendment shall provide for ratable credit extensions and repayments across all Revolving Facilities (including any Additional Revolving Facility), in a manner reasonably satisfactory to the Administrative Agent (and subject to such exceptions as are satisfactory to the Administrative Agent including with respect to Letters of Credit which expire after the Maturity Date and repayments of any existing Revolving Facility at maturity, to the extent any Additional Revolving Facility matures at a later date).

(d)      Participation . Existing Lenders may be offered the opportunity to provide any such Incremental Term Loan, Revolving Facility Increase or Additional Revolving Facility, but each such Lender shall have no obligation to provide all or any portion of such Incremental Term Loan, Revolving Facility Increase or Additional Revolving Facility. The Company may invite other banks, financial institutions and investment funds reasonably acceptable to the Administrative Agent (such consent not to be unreasonably withheld or delayed) to join this Credit Agreement as Lenders hereunder for any portion of such Incremental Term Loan, Revolving Facility Increase or Additional Revolving Facility; provided that such other banks, financial institutions and investment funds shall enter into such joinder agreements to give effect thereto as the Administrative Agent may reasonably request.

(e)      Amendments . The Administrative Agent is authorized to enter into, on behalf of the Lenders, any amendment to this Credit Agreement or any other Credit Document or any joinder agreements as may be necessary or advisable to incorporate the terms of any such Incremental Term Loan, Revolving Facility Increase or Additional Revolving Facility.

Section 2.23      Foreign Borrowers .
(a)      The Company may, upon not less than fifteen (15) Business Days’ notice from the Company to the Administrative Agent (or such shorter period as may be agreed by the Administrative Agent in its reasonable discretion), designate any Subsidiary (an “ Applicant Borrower ”) that is (i) a Wholly Owned Subsidiary of the Company and (ii) a Foreign Subsidiary, as a Foreign Borrower hereunder by delivering to the Administrative Agent (which shall promptly deliver counterparts thereof to each Lender) a duly executed notice and agreement in substantially the form of Exhibit O (a “ Foreign Borrower Request ”). The parties hereto acknowledge and agree that prior to any such


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Applicant Borrower becoming entitled to utilize the credit facilities provided for herein, (x) the Administrative Agent and the Lenders shall have received, without limitation, (i) such supporting resolutions, incumbency certificates, commercial register excerpts, memorandum and/or articles of association, by-laws, any other constitutional or organizational documents, opinions of counsel (including a legal opinion as to withholding Taxes applicable with respect to any payment made by such Subsidiary) and other documents, confirmations or information (including the information required to be provided pursuant to Sections 3.3 and 10.17), in form, content and scope reasonably satisfactory to the Administrative Agent, as may be required by the Administrative Agent or the Required Lenders in their reasonable discretion (collectively, the “ Applicant Borrower Documents ”), (ii) from each Foreign Parent of such Applicant Borrower (other than the Company, any Company Guarantor and any Immaterial Subsidiary), a fully executed Foreign Parent Guaranty Agreement or Foreign Parent Guaranty Joinder Agreement, as applicable, (iii) for any Applicant Borrower (other than Itron Metering Solutions Luxembourg) that is not a direct or indirect Subsidiary of Itron Metering Solutions Luxembourg (or, in the event Itron Metering Solutions Luxembourg and its Subsidiaries do not constitute a majority of the assets and revenues of the Company’s Foreign Subsidiaries, measured in the case of assets, based on the most recent financial statements delivered to the Administrative Agent pursuant to Section 5.1(a) or (b), and in the case of revenues, over the most recent four-quarter period for which financial statements have been delivered to the Administrative Agent pursuant to Section 5.1(a) or (b)), such guarantees as the Administrative Agent shall have reasonably determined, in consultation with all the Company, are required, (iv) Notes signed by such Applicant Borrower to the extent any Lenders or Issuing Lenders so request and (v) such amendments or other modifications to this Agreement and the other Credit Documents that are not materially adverse to the interests of the Lenders as may reasonably be requested by the Administrative Agent to effect the addition of such Applicant Borrower as a Foreign Borrower, and (y) the Administrative Agent shall have reasonably determined, in consultation with all the Lenders, that designating such Applicant Borrower as a Foreign Borrower would not violate the internal policies of any Lender or cause any Lender to suffer any economic, legal or regulatory disadvantage (including with respect to Tax or registration requirements; provided that that no Lender shall be deemed to suffer any such disadvantage on account of any withholding Tax being applicable to any payment made by such Applicant Borrower to the extent that the applicable Credit Parties agree to treat any such withholding Tax as an Indemnified Tax, in which case no such legal opinion as to such withholding Tax shall be required). If the Administrative Agent and the Lenders agree that the Applicant Borrower shall be entitled to receive Loans hereunder (which decision shall be in their sole discretion; provided that it is understood and agreed that, (A) the German Borrowers, (B) the Luxembourg Borrowers and (C) the U.K. Borrowers shall be entitled to receive Loans hereunder upon compliance with the requirements of this Section 2.23), then promptly following receipt of all such required or requested Applicant Borrower Documents, the Administrative Agent shall send a notice to the Company and the Lenders specifying the effective date upon which the requested Applicant Borrower shall constitute a Foreign Borrower for purposes hereof, whereupon each of the Lenders agrees to permit such Foreign Borrower to receive Loans hereunder, on the terms and conditions set forth herein, and each of the parties hereto agrees that such Foreign Borrower otherwise shall be a Borrower for all purposes of this Agreement; provided that no Notice of Borrowing may be submitted by or on behalf of such Foreign Borrower until the date that is five (5) Business Days after such effective date.

(b)      The Foreign Obligations of all Foreign Borrowers shall be several in nature, and no Foreign Borrower, in its capacity as a Foreign Borrower, will be liable for the Foreign Obligations of another Borrower; provided that this provision shall not limit any Foreign Obligations of a Foreign Borrower, in its capacity as a Guarantor, with respect to the Foreign Obligations of any other Foreign Borrower.


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(c)      Any acknowledgment, consent, direction, certification or other action which might otherwise be valid or effective only if given or taken by all Borrowers, or by each Borrower acting singly, shall be valid and effective if given or taken only by the Company, whether or not any such other Borrower joins therein. The Company shall be entitled to act on behalf of any other Borrower, and the Administrative Agent, the Lenders, the Issuing Lenders and the Swingline Lenders may rely on any notice, action, acknowledgment or ratification made by the Company acting on behalf of or purporting to act on behalf of any other Borrower. Any notice, demand, consent, acknowledgement, direction, certification or other communication delivered to the Company in accordance with the terms of this Credit Agreement shall be deemed to have been delivered to each Foreign Borrower.